Muir v. Kane

• Decision Date: 04 October 1909
• Citation: 55 Wash. 131,104 P. 153
• Parties: MUIR v. KANE et ux.
• Court: Washington Supreme Court

104 P. 153

55 Wash. 131

MUIR v. KANE et ux.

Supreme Court of Washington

October 4, 1909

Department 1. Appeal from Superior Court, King County; Arthur E Griffin, Judge.

Action by B. L. Muir against M. Francis Kane and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Rice &amp Frank, for appellants.

F. J Carver, for respondent.

FULLERTON, J.

The respondent brought this action to recover of the appellants the sum of $200, alleged to be due pursuant to a written agreement executed and delivered to him by the appellants whereby they agreed to pay him the sum of $200 for his services in selling for appellants a certain tract of real property. Issue was taken on the complaint, and a trial had thereon which resulted in a judgment in his favor for the amount claimed to be due. The case was tried by the court sitting without a jury. No question is raised as to the correctness of the facts found, but the case is here on the question whether these facts justify the judgment of the court.

The court's findings of fact are as follows:

'(1) That now and at all times herein referred to the plaintiff is and was doing a general real estate business in Seattle, Wash., under the firm name and style of B. L. Muir & Co., being the sole owner thereof.

'(2) That now and at all times concerned herein the defendants are and were husband and wife.

'(3) That on or about the 21st day of November, 1906, the defendants made, executed, and delivered to the plaintiff their written agreement, agreeing to pay said plaintiff $200 for his services in selling for them a certain parcel of real estate; said agreement being in words and figures, to wit: 'M. Francis Kane and Ida Kane, his wife, agree to sell and Paul Bush agrees to buy the following described real estate situated in the county of King, state of Washington, to wit: South 40 feet of lot 1, block 17, J. H. Nagle's addition to the city of Seattle, for the sum of nine thousand six hundred dollars ($9,600) the purchaser having paid the sum of five hundred dollars ($500) the receipt of which is hereby acknowledged, as earnest money and part payment for said land, the same to be held in trust by B. L. Muir & Co. until the sale is closed or canceled and the balance of said purchase price shall be paid as follows, or as soon after said dates respectively as the title to said real estate is shown to be marketable, to wit: Three thousand dollars ($3,000) on or before the 22nd day of Nov., 1906, at 1 p. m.; nineteen hundred dollars ($1,900) on or before the 22nd day of Nov., 1907, at 1 p. m.; four thousand dollars ($4,000) according to certain mortgage to be executed due in three years from date. The purchaser agrees to pay interest at the rate of six per cent. payable semiannually on all deferred payments. The vendor agrees to furnish an abstract of title made by a reliable abstract company for said real estate, showing a marketable title of record in the vendor free from encumbrances to date of conveyance, except the street assessments amount to about two hundred dollars ($200) and if over $200 the surplus to be deducted from the nineteen hundred payment which the purchaser assumes and agrees to pay as a part of the above named purchase price, and the vendor further agrees to transfer said property to the purchaser by a good and sufficient warranty deed to the said vendee or his assigns and pay two hundred dollars ($200) of the purchase price to B. L. Muir & Co., for services rendered. The purchaser shall have one day's time after the delivery of said abstract for examination of same, and in case the abstract shall show a marketable title in the vendor, this sale shall be completed, and if the said title is not marketable and cannot be made so, then B. L. Muir & Co. shall refund to the said vendee the above named earnest money, and the sale shall be canceled, the deposit of $500 to be paid to Mrs. Ida Kane in the event of the purchaser failing to comply with this agreement. Witness our hands this 21st day of November, 1906. Signed and delivered in the presence of B. L. Muir. M. Francis Kane. [Seal.] Ida Kane. [Seal.] Paul Bush. [Seal.]'

'(4) That the plaintiff did make the sale referred to in said written contract and which sale was accepted by the defendants, but they have since failed, neglected, and refused to pay the aforesaid two hundred dollars ($200) commission allowed, although the same is long past due and still the property of the plaintiff.'

The statute (Laws 1905, p. 110, c. 58) governing contracts for commissions for buying or selling real estate provides that any agreement authorizing an employé, as an agent, or broker to sell or purchase real estate for compensation or a commission, shall be void unless the agreement, contract, or promise or some note or memorandum thereof be in writing. The appellants contend that the writing relied upon by the respondent is insufficient under the statute; that it is not an agreement authorizing the respondent to sell the real property described for compensation or commission, nor does it authorize or employ the respondent to sell real estate at all. Manifestly, if the writing sued upon was intended as an agreement authorizing the respondent to sell real estate of the appellants, it is faulty in the particulars mentioned, and so far deficient as not to warrant a recovery even if a sale had been made thereunder. But we do not understand that this is the question presented by the record. It is clear that this writing was not intended as an agreement authorizing the respondent to sell the real property mentioned. In fact, it was executed after that service had been performed, and is an agreement in writing to pay a fixed sum for a past service, not a service to be performed in the future. The question for determination is its validity as a promise to pay for a past service. Looking to the instrument itself, there is nothing on its face that in any manner impugns its validity. It is a direct promise to pay a fixed sum of money for services rendered. Prima facie, therefore, it is legal and valid; and, if it is illegal at all, it is because the actual consideration for the promise, which was alleged and proven, rendered the...