Parker v. Bruggemann

• Decision Date: 28 February 1913
• Citation: 72 Wash. 309,130 P. 358
• Court: Washington Supreme Court
• Parties: PARKER et al. v. BRUGGEMANN et al.

130 P. 358

72 Wash. 309

PARKER et al. v. BRUGGEMANN et al.

Supreme Court of Washington

February 28, 1913

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by W. R. Parker and another, doing business as Parker &amp Emory, against M. B. Bruggemann and another, doing business as M. B. Bruggemann & Company, as copartners and as individuals. From a judgment for defendants, plaintiffs appeal. Affirmed.

John P Hartman, of Seattle, for appellants.

Douglas Lane & Douglas, of Seattle, for respondents.

ELLIS J.

Action for a balance of commissions claimed to be due upon an exchange of real estate. The plaintiffs were real estate brokers operating in Island county, Wash. The defendants were doing a general real estate business in the city of Seattle. The plaintiffs had listed for sale a tract of land on Whidby Island, containing about 549 acres. They approached the defendants with a view to selling them this land at a price of $15 an acre, and were informed that the defendants did not have sufficient money to make the purchase, but would endeavor to get some one to go in with them, put up the money, and buy the land. Such an arrangement was finally made by the defendants with one Ernest Carstens, a banker of Seattle, who advanced $2,000, took the title in his own name, and gave a mortgage upon the land for the balance of the purchase price, with the understanding that he was to be repaid his money with interest, and he and the defendants would be joint owners of the land subject to this charge, and would share equally in any profits made upon the venture. The defendants were to have the management of the land and endeavor to make a sale of it so as to realize a profit for themselves and Carstens. Carstens testified to the same agreement. This agreement seems to have been verbal, or, if any memorandum of it was made, it was never recorded. The plaintiffs claim that they knew nothing of this agreement, and thought Carstens was purchasing for himself alone, and that the defendants were merely his agents. The plaintiff Parker, however, in his testimony referred to the sale as a sale to the defendants and Carstens. Moreover, the plaintiffs brought a prior action for this same commission against the Bruggemanns and Carstens as owners, and took a voluntary dismissal. We think the evidence at least tends to justify a belief that the plaintiffs knew the nature of the defendants' agreement with Carstens.

After the transfer of the land to Carstens in March, 1910, the plaintiffs and the defendants entered into a verbal arrangement to again sell the lands; the plaintiffs to act as respondents' agents at Oak Harbor, Whidby Island, and to receive as their commission 10 per cent. of the sale price. Both parties concede that nothing was said as to the agency being exclusive. So far there was little dispute as to the facts. There was, however, as to the following particulars a sharp conflict in the evidence. Both the plaintiffs testified that this arrangement was unlimited as to time, while both the defendants testified that it was limited to a period of six months from the transfer to Carstens; that the plaintiffs represented that they could sell in three to six months, but wanted an agreement for one year; that the defendants refused to give any written agreement, but did agree verbally that, if the plaintiffs sold the land within six months, they would be allowed a commission of 10 per cent. The plaintiffs testified to the effect that they were merely to aid in making sales, and were to receive their commissions on sales made to any purchaser sent to them by the defendants to be shown the land. The defendants testified, in effect, that the commissions were to be paid only on sales to purchasers procured by the plaintiffs. Circulars were sent out by the defendants, advertising the advantages of the land and referring to the plaintiffs as resident agents. When these circulars were sent out is not made plain, but that they were still in circulation, when the transaction upon which the commission is claimed took place, seems clear.

Within six months after this agreement was made, the plaintiffs through their own efforts, found a purchaser and sold 30 acres of the land for $50 an acre. The sale was approved by the defendants, and the plaintiffs were paid $150 commission out of the purchase price. In order to facilitate further sales, the defendants, apparently at the plaintiffs' suggestion, had the remaining land surveyed into 40-acre tracts; the defendants paying the expense of the survey. No further sales were made within the six months, and the defendants testified that, at about the expiration of that time, they verbally notified the plaintiffs that the arrangement was at an end. Both of the plaintiffs denied that any such notice was given. After the expiration of the six months, the defendants were approached by West & Wheeler, a real estate firm of Seattle, with an offer on the part of one Murphy, a client of the last-mentioned firm, to exchange certain real estate in Seattle for the remaining 519 acres of the Whidby...