Ringler v. Ruby

• Decision Date: 23 February 1926
• Parties: RINGLER v. RUBY.
• Court: Oregon Supreme Court

244 P. 509

117 Or. 455

RINGLER v. RUBY.

Supreme Court of Oregon

February 23, 1926

Rehearing Denied March 23, 1926.

In Bank.

Appeal from Circuit Court, Multnomah County; George W. Stapleton Judge.

Action by Charles Ringler against Samuel Ruby. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action to recover damages for an alleged interference with the performance of a contract. Plaintiff, a real estate broker, alleges that he entered into an oral agreement with Samuel Mesher that if he would procure a purchaser for Mesher's property at a price of $21,000, he would be paid for his services the sum of $1,000 cash. Plaintiff avers that, pursuant to this oral agreement, he advertised the property for sale at such price, and by reason thereof attracted the attention of the defendant, with whom he "entered into and began negotiations for the sale of said property"; that he showed the property to him and advised him as to the terms upon which it could be bought that after negotiations for some weeks "the defendant determined to buy said property and to pay therefor $21,000 and then and there conceived the idea and invented a fraudulent plan of cheating and defrauding the plaintiff and the owner of said property and thereby benefiting himself and in pursuance of said idea and plan the defendant, while still negotiating with the plaintiff for said property, took advantage of the information imparted to him by plaintiff, to wit, the name and address of the owner of said property and the further information that the said Mesher's net price for said property was $20,000, and proceeded directly to the said owner at the address furnished by the plaintiff and stated unto the said Mesher that he was interested in the purchase of said property, and then and there falsely and fraudulently, and with the express intent and for the express purpose of cheating and defrauding the plaintiff and depriving him of his commission, told and represented unto the said Mesher, in response to a direct inquiry from said Mesher, that he (the said defendant) had not negotiated or dealt with the plaintiff or any other agent or person whomsoever for the purchase and sale of said property; that he had discovered that said property was for sale upon his own initiative and he would pay $20,000 therefor and no more and said Mesher, if he sold said property to defendant, would not have to pay a broker's commission to the plaintiff nor be obligated to pay said or any commission." Plaintiff alleges that these representations were knowingly false; that Mesher relied thereon, and by reason thereof was induced to and "in perfect good faith did sell and convey the property to the defendant, and for the price of $20,000," whereby plaintiff alleges he was damaged in the sum of $1,000.

Defendant demurred to the amended complaint for the reason that it failed to state facts sufficient to constitute a cause of action, but the same was overruled, and defendant answered denying the above allegations and alleging affirmatively:

"He learned of the fact that said property was for sale through the advertisement of the plaintiff herein, and thereafter negotiated directly with the owner of said real property and made his purchase from the owner for the sum of $21,105.44.

"That the plaintiff was the procuring cause by which this defendant negotiated with and consummated the sale with the owner.

"That whatever contract the plaintiff may have had with the owner of said real property was in no way interfered with or disturbed by this defendant. On the contrary, he was instrumental in carrying out the terms of said contract by his purchase from the owner direct."

Plaintiff in his reply admitted that he procured defendant to purchase the property in question, but denied other affirmative matter in the answer. Defendant moved for nonsuit and directed verdict, but the cause was submitted to a jury and a verdict was returned in favor of plaintiff for $1,000. Defendant appeals.

Beck & Hoecker, Bernstein & Cohen, Martin L. Pipes, John M. Pipes, and George A. Pipes, all of Portland, for appellant.

W. B. Shively, of Portland, for respondent.

BELT, J. (after stating the facts as above).

There is evidence tending to show that plaintiff had an oral agreement to procure a purchaser for the property as alleged; that pursuant to such agreement he showed defendant the property, advised him as to the terms of sale and the amount of his commission, and endeavored to sell it to him at the price of $21,000, but was unable to do so; that subsequent to such negotiations defendant, in an effort to deprive plaintiff of his commission, dealt directly with the owner, and fraudulently concealed from him the fact that he had been negotiating for the property with the plaintiff or that he had been sent there by him; and that by reason of the alleged fraud Mesher was induced to sell the property to defendant for $20,000. Assuming this evidence to be true, does it constitute a prima facie cause of action? Otherwise stated, did the trial court err in submitting the matter to the jury?

Plaintiff contends that a third person who, through fraud and deceit, prevents the performance of a contract, is liable for the damages sustained. 25 R. C. L. 733, and numerous cases cited supporting the text. This proposition of law is sound, but we are concerned whether the averments and proof come within such doctrine. For plaintiff to recover, it was necessary to aver and prove: (1) The contract as alleged; (2) that by reason of the wrongful and fraudulent interference of defendant plaintiff was prevented from performing such contract; and (3) that damages were sustained as a result thereof.

At the very threshold of the case plaintiff is met with the objection that the alleged contract, by reason of the statute of frauds, is void. Defendant, however, is not in position to urge this point. He is not a party to the contract. It does not rest with him to say that the parties thereto will not abide by the same regardless of the statute. There is nothing inherently wrong, nor is it illegal, for an owner of real property orally to make such an agreement. The statute of frauds was enacted for the protection of the party sought to be charged. It is personal and not available to strangers to the agreement. Clarke v. Philomath College, 193 P. 470, 195 P. 822, 99 Or. 366; Ex parte Banks, 64 So. 74, 185 Ala. 275; Rickards v. Cunningham, 6 N.W. 475, 10 Neb. 417; Happ v. Ducey, 193 N.W. 918, 110 Neb. 429; Rice v. Manley, 66 N.Y. 82, 23 Am. Rep. 30; 27 C.J. 307; Williston on Contracts, § 530; Cooley on Torts (3d Ed.) 949. It is to be noted that the cases are from states whose statutes provide that such agreements are void unless reduced to writing and signed by the party charged. Dung v. Parker, 52 N.Y. 494, is relied upon by appellant, but that case, in Rice v. Manley, supra, is distinguished and held not to be in conflict with the conclusion here reached. There is ample proof that plaintiff had a contract as alleged, and we must here consider it as a valid and binding agreement. Of course, it could have no force or effect against Mesher if he saw fit to avail himself of the protection of the statute, but with that question we are not concerned.

We next come to the question: Did defendant by fraudulent means prevent plaintiff from performing his contract? In considering this phase of the case, it is important to bear in mind that plaintiff agreed to procure a purchaser who would buy the property for $21,000. Plaintiff avers that defendant bought the property for $20,000. It is not averred nor is there evidence tending to show, that plaintiff ever procured a purchaser who was ready, able, and willing to pay $21,000. We take it, therefore, that plaintiff, at...