Oregon Home Builders v. Crowley
| Citation | 87 Or. 517,170 P. 718 |
| Parties | OREGON HOME BUILDERS v. CROWLEY. |
| Decision Date | 29 January 1918 |
| Court | Supreme Court of Oregon |
Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.
Action by the Oregon Home Builders, a corporation, against J. M Crowley. From a judgment for defendant, plaintiff appeals. Judgment reversed, and cause remanded for further proceedings.
Rehearing denied 171 P. 214.
This is an action by the Oregon Home Builders, a corporation, to recover a commission for procuring an exchange of lands. The trial court sustained a demurrer to the complaint; the plaintiff refused to plead further; a judgment was rendered for the defendant; and the plaintiff appealed. For the purposes of the appeal the statement of facts found in the complaint must be accepted as true. The complaint alleges that on October 26, 1915, "the defendant, in writing authorized and employed plaintiff to sell or exchange property of which the defendant was the owner." The writing is as follows:
J. M Crowley.
In the margin appears the following:
The plaintiff avers that it "accepted said employment and contract orally." Continuing, the plaintiff alleges that while the "contract" was still in effect it "found and procured a buyer for said property in the person of one Blanche Todd," who owned some land in Clackamas county. After "numerous and continuous negotiations * * * in many of which plaintiff assisted, associated and participated," Blanche Todd and the defendant exchanged properties. The property of the defendant was priced at $20,500; and the plaintiff is attempting to recover a commission of $512.50, being 2 1/2 per cent. of the selling price.
W. B. Shively, of Portland, for appellant. H. D. Angell, of Portland (Angell & Fisher, of Portland, on the brief), for respondent.
HARRIS, J. (after stating the facts as above).
The only question for decision is whether the writing signed by Crowley satisfies the statute of frauds. The defendant contends that the writing is insufficient to meet the requirements of section 808, L. O. L., because (1) it fails to express the consideration, and (2) it is a mere offer and therefore not an agreement. Section 808, subd. 8, L. O. L., reads thus:
"In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing or secondary evidence of its contents, in the cases prescribed by law: * * * (8) An agreement entered into subsequent to the taking effect of this act, authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission."
Our statute was adopted in 1862 as a part of the Civil Code, and, as originally enacted, it embraced seven subdivisions which covered the several classes of cases which were provided for by the fourth and seventeenth sections of the English statute of frauds. Subdivision 8 was added to our statute in 1909. In each of the eight classes of cases mentioned in section 808, L. O. L., there must be a writing or writings evidencing the agreement and expressing the consideration. The contention that the writing signed by Crowley does not express the consideration naturally involves two questions: (1) What is the consideration that must be expressed; and (2) when can it be said that the consideration is expressed? There was a reason for inserting in our statute the clause "expressing the consideration." A history of the English statute and the fact that American courts had differed in their views about the necessity of expressing the consideration under their respective statutes of frauds serve to explain the clause in question.
The statute of frauds, 29 Car. II, c. 3, became operative in 1677. The fourth section provided:
"And bee it further enacted by the authoritie aforesaid That from and after the said fower and twentyeth day of June noe Action shall be brought whereby to charge any Executor or Administrator upon any speciall promise to answre damages out of his owne Estate (2) or whereby to charge the Defendant upon any speciall promise to answre for the debt default or miscarriages of another person (3) or to charge any person upon any agreement made upon consideration of Marriage (4) or upon any Contract or Sale of Lands Tenements or Hereditaments or any Interest in or concerning them (5) or upon any Agreement that is not to be performed within the space of one yeare from the making thereof (6) unlesse the Agreement upon which such Action shall be brought or some Memorandum or Note thereof shall be in writeing and signed by the partie to be charged therewith or some other person thereunto by him lawfully authorized."
It will be observed that the fourth section does not in terms require an expression of the consideration. However, in the celebrated case of Wain v. Warlters, 5 East, 10, decided in 1804, it was held that the writing must express the consideration. Wain and another were the indorsees and holders of a bill of exchange dated February 14, 1803, drawn by one Gore upon and accepted by one Hall, whereby Gore requested Hall 70 days after date to pay to Gore's order pounds sterling56 16s. and 6d. The sum expressed in the bill of exchange became due and the indorsees retained an attorney to sue Gore and Hall for the amount due when Warlters on April 30, 1803, in consideration that the indorsees would forbear to proceed for the recovery of the amount due on the bill of exchange, promised the indorsees to pay them by half past 4 o'clock that day pounds sterling56, and the expenses which had then been incurred by them on the bill of exchange. The indorsees stayed proceedings against Gore and Hall, and upon the failure of Warlters to make payment they sued Warlters. At the trial they produced a writing signed by Warlters which was in these words:
Warlters objected to the writing upon the ground that it did not express the consideration. It was held that the word "agreement" included both the promise and the consideration, and, since the writing only contained the promise and made no reference to the consideration for the promise, it did not comply with the fourth section of the statute of frauds. The decision in Wain v. Warlters has probably caused more discussion than any other case dealing with the statute of frauds. Some of the American courts followed Wain v. Warlters, while others declined to do so. Browne on St. of Frauds (5th Ed.) § 390; Anson on Contracts (2d Am. Ed.) 70, note 2; 1 Reed on St. of Frauds, §§ 421, 422, and 427; 20 Cyc. 262. Prior to the adoption of section 808, L. O. L., the courts of this country had been differing in their opinions as to whether or not a statute which required an agreement to be in...
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Oregon Home Builders v. Crowley
...26, 1918 Department 1. Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge. On rehearing. Denied. For former opinion, see 170 P. 718. W. B. Shively, of Portland, for appellant. H. D. of Portland (Angell & Fisher, of Portland, on the brief), for respondent. HARRIS, J. The or......