Oregon Home Builders v. Montgomery Inv. Co.
Decision Date | 21 October 1919 |
Parties | OREGON HOME BUILDERS v. MONTGOMERY INV. CO. [a1] |
Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.
Action by the Oregon Home Builders against the Montgomery Investment Company. From judgment for defendant, plaintiff appeals. Affirmed.
This is an action by a real estate broker to recover a commission. The Oregon Home Builders, plaintiff, and the Montgomery Investment Company, defendant, are corporations. The plaintiff is engaged in the business of a real estate broker. The defendant owned a four-story brick building and the land upon which it stood in Portland. On June 1, 1916, the defendant signed a writing which reads as follows:
Afterwards the plaintiff introduced to the defendant Claude D. Starr as a prospective purchaser. After "numerous negotiations" between Starr and the defendant, "in all of which said negotiations the plaintiff corporation assisted, associated, and participated," the defendant and Starr signed a writing as follows:
The plaintiff was "the procuring cause of the execution of the agreement" made between the defendant and Starr.
On June 10, 1916, Starr submitted to the defendant abstracts of title covering the two Portland lots and the two Clackamas county tracts. The abstracts "did not disclose that the said Starr was the owner in fee simple of the property situated in Clackamas county * * * and did not disclose that said Starr had a marketable title thereto." In truth, Starr "was not at any time prior to the commencement of this action the owner in fee simple of the real property known as the Clackamas county lands, and did not have a marketable title thereto, but his title therein was defective." On July 20, 1916, the defendant delivered to Starr a complete statement of its objections, "pointing out the defects to the title of said Clackamas county lands as shown by said abstract of title," and "refused to consummate said deal unless the defects so pointed out should be remedied within a reasonable time and on or before the 3d day of September, 1916." Starr failed to correct the defects pointed out to him, and he "did not prior to the 3d day of September, 1916, or at all, tender to the defendant an abstract of title showing that said defects or any of them had been remedied, or showing that the said Starr had or could convey a marketable title to said Clackamas county lands." On September 3, 1916, the defendant notified Starr "that on account of his failure and refusal to comply with said contract the defendant considered itself no longer bound thereby." Starr had caused the written agreement which he and the defendant had signed to be recorded; and in February, 1917, he delivered to the defendant a quitclaim deed to the brick building. Up to and including the time when the quitclaim deed was delivered, "Starr was not able to convey a fee-simple or marketable title to said Clackamas county lands to the defendant, and neglected within a reasonable time after the defects to the title were pointed out to him by the defendant to cure said defects or any of them." Starr was ready and willing at all times, however, to pay the defendant the $5,000 stipulated in the contract.
The plaintiff brought this action to recover $750, alleging that it had earned and was entitled to that sum as a commission under the terms of its contract with the defendant. The facts narrated in the foregoing statement are taken from the findings of fact made by the trial judge, who, with the consent of the parties, heard the cause without the aid of a jury. The judgment was for the defendant, and the plaintiff appealed.
W. B. Shively, of Portland, for appellant.
Robert F. Maguire, of Portland (E. V. Littlefield and Winter, Reams & Maguire, all of Portland, on the briefs), for respondent.
HARRIS, J. (after stating the facts as above).
The plaintiff contends that the findings labeled "Findings of Fact," so far as they relate to Starr's title to and ownership in the Clackamas county lands, are no more than conclusions of law; and that therefore they are insufficient to support the judgment. Where the parties to an action at law waive their right to a jury, the findings made by the trial judge who hears and decides the cause are in the nature of a special verdict; and hence, since the standard fixed for a special verdict is also taken as the standard for the "findings of fact," the trial judge must find the facts with the same degree of particularity as is required in a special verdict returned by a jury. A special verdict must find all the facts essential for a judgment; but ultimate and constitutive, rather than evidentiary, facts should be stated. Generally, a special verdict must pass upon all the material issues; and yet a special verdict will be adequate if it states sufficient findings on an issue which ultimately determines the case and necessarily supports the judgment rendered so that other issues in the controversy become immaterial. Turner v. Cyrus, 179 P. 279. If the findings made by the trial judge are not in truth findings of fact, but in effect are only conclusions of law, then the judgment cannot stand because it must be supported by a statement of ultimate facts. 38 Cyc. 1979.
An "evidentiary fact" is...
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