Myers v. Arthur

• Court: Washington Supreme Court
• Writing for the Court: MITCHELL, J.
• Citation: Myers v. Arthur, 135 Wash. 583, 238 P. 899 (Wash. 1925)
• Decision Date: 20 August 1925
• Docket Number: 19250.
• Parties: MYERS et al. v. ARTHUR.

238 P. 899

135 Wash. 583

MYERS et al. v. ARTHUR.

No. 19250.

Supreme Court of Washington

August 20, 1925

Department 2.

Appeal from Superior Court, King County; Claypool, Judge pro tem.

Action by Reany Myers and another, partners doing business as the Central Realty Company, against Hattie Arthur. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. H Templeton, of Seattle, for appellant.

Robert D. Hamlin, of Seattle, for respondents.

MITCHELL J.

This action was brought to recover a real estate broker's commission on the sale of furniture, fixtures, furnishings and a leasehold interest of several years in a hotel in Seattle. The employment of the brokers was not in writing. The defendant has appealed from a judgment against her.

Two questions are presented: (1) Was the agreement employing the brokers within the statute of frauds? and (2) did the brokers comply with the agreement, so as to entitle them to the commission? The statute relied on by the appellant is subdivision 5, § 5825, Rem. Comp. Stat. (act of 1905), which says:

'An agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission' shall be void, unless the agreement or some note or memorandum thereof be in writing etc.

The contract in this case is not severable as to the different kinds of property, and appellant contends that, as a lease of real property for a term of years is within section 5825 of the Code, the respondents cannot recover. She relies on section 2303, Rem. Comp. Stat., and the cases of Reilley v. Anderson, 33 Wash. 58, 73 P. 799, and Moeller v. Gormley, 44 Wash. 465, 87 P. 507. Section 2303 gives the definition of the term 'real property' as the term is used in the Criminal Code enacted in 1909. Chapter 249, Session Laws 1909. The case of Reilley v. Anderson, supra, holds that a leasehold estate in land for a term of years is an interest in land, as to the manner of making an execution sale. Moeller v. Gormley, supra, decided that under the revenue and taxation statutes then in force a leasehold estate for a term of years was real property. But in both cases the conclusion was reached because of an applicable statute, for, as was stated in the Reilley Case, 'it is competent for the Legislature to provide by statute that it must be sold under execution in the same manner as real estate,' and the court then cites authority stating that:

'Under statutes in some jurisdictions, leasehold interests are to be seized and levied on as realty. But it seems to be the prevailing rule that, apart from statute, such interest should be levied upon as personalty.'

In Tibbals v. Iffland, 10 Wash. 451, 39 P. 102, after stating that leases of real estate for more than one year must, under our statutes, be created by deed, and with the usual formalities of deeds, it was said:

'But the interest conferred by a lease for a term of years, whether for a long or short period, is only a chattel interest (1 Wood, Landlord and Tenant [2d Ed.] pp. 143, 149; Gear, Landlord and Tenant, § 2), and is generally subject to the law pertaining to chattels.'

And still further in the same case, with reference to the assignment of such a lease, it was said:

'If the respondent was a married man, he had the same right to assign and transfer the lease that he had to dispose of chattels generally, without the consent of his wife (Gear, Landlord and Tenant, § 183), and if he was unmarried he could, of course, make such disposition of it as he saw fit. It was therefore immaterial whether he was married or not, so far as the right to make the assignment was concerned.'

The case of American Savings Bank & Trust Co. v. Mafridge, 60 Wash. 180, 110 P. 1015, involved the assignment of a lease of real property for a term of years, and among other things it was said:

'The contract under consideration, under the rule of law above stated, was an assignment of a lease, and does not fall within the statute which requires leases for a term of more than one year to be in writing. We have no statute which requires an assignment of a lease for a term of years to be acknowledged. In Tibbals v. Iffland, 10 Wash. 451, 39 P. 102, this court said: 'But the interest conferred by a lease for a term of years, whether for a long or short period, is only a chattel interest (1 Wood, Landlord and Tenant [2d Ed.] pp. 143, 149; Gear, Landlord and Tenant, § 2), and is generally subject to the law pertaining to chattels.' And we also there held that a married man has the right to assign and transfer a lease without the consent of his wife. Under these rules, the contract in question was a valid contract, capable of being enforced, even though it was not acknowledged.'

In the case of Taylor v. Basye, 119 Wash. 263, 205 P. 16, in discussing the validity of an arbitration and award that included a lease for a term of years, we said:

'The subject-matter embraces a lease which, under our laws, is a chattel interest ( Tibbals v. Iffland, 10 Wash. 451, 39 P. 102; American Savings Bank & Trust Co. v. Mafridge, 60 Wash. 180, 110 P. 1015), and certain other personal property concerning which the parties were free to contract, irrespective of where it was situated.'

Undoubtedly at common law a leasehold, whatever its duration in years was personal...