Rodman v. Manning

• Court: Oregon Supreme Court
• Writing for the Court: MOORE, C.J.
• Citation: Rodman v. Manning, 53 Or. 336, 99 P. 657 (Or. 1909)
• Decision Date: 09 February 1909
• Parties: RODMAN v. MANNING et al. [d1]

99 P. 657

53 Or. 336

RODMAN v. MANNING et al. ^[d1]

Supreme Court of Oregon

February 9, 1909

Appeal from Circuit Court, Lane County; L.T. Harris, Judge.

Suit by Jack Rodman against William P. Manning and others. From a decree for complainant, defendants appealed. Reversed and suit dismissed.

See also, 93 P. 366.

G.W. Stapleton, for appellants.

Jno. M Williams, for respondent.

MOORE C.J.

This is a suit to enforce the specific performance of a contract to convey real property. The facts are that the defendants William P. Manning and Mary, his wife, were the owners of 320 acres of timber land in Lane county, Or., and while residing at Roy, Wash., received a telegram November 17, 1906, from the plaintiff, Jack Rodman, who, the defendants knew, was engaged in the real estate business at Eugene, inquiring if they owned such property, and, if so, what was the price thereof. Manning, not knowing the value of the land at that time, in reply to the message wired as follows: "Yes price $4,000 less 5 per cent. commission." The plaintiff immediately telegraphed to Manning as follows: "Will take it; send deed to me, First Nat'l Bank." The deeds were made out and sent to the defendant bank as requested, with instructions that they be delivered upon the receipt of $3,800. Rodman on November 23, 1906, wrote Manning as follows: "Will you kindly instruct the First National Bank to accept a deposit of $200 as evidence of good faith and to hold your deeds to me for two weeks, so as to give me a little time to get together some other pieces which I am endeavoring to collect, in order to make a sale of it all together? If this will not inconvenience you it will be an accommodation to me, and I will make the deposit as soon as I get word from you that you have so instructed the bank." Manning in reply thereto sent the plaintiff a postal card, stating that he had directed the bank as requested; but on November 26, 1906, he countermanded the order, and notified the bank not to deliver the deeds. Thereafter Rodman tendered to the bank $3,800, and demanded the deeds, but failed to obtain them. Prior to such tender, the plaintiff had agreed with certain persons to sell and convey to them the defendants' lands, for which he was to receive $6,500. The complaint herein is in the usual form. The answer alleges that the plaintiff was the defendants' agent in negotiating the sale of their property, and that, having concealed from them the value of the premises, they are not bound by their contract. The reply put in issue the allegations of new matter in the answer, and, the cause having been tried, resulted in a decree as prayed for in the complaint; and the defendants appeal.

The important question to be considered is whether or not the plaintiff was employed by the defendants to negotiate a sale of their real property. "A broker," says Mr Hammon, "is one who is engaged for others on a commission negotiating contracts relative to property with the custody of which he has no concern." 19 Cyc. 186. The chief feature which distinguishes a broker from other classes of agents is that he is an intermediary or middleman who in effecting a sale or exchange of property acts, in a certain sense, as the agent of both parties to the transaction. Vinton v. Baldwin, 88 Ind. 104, 45 Am.Rep. 447; Saladin v. Mitchell, 45 Ill. 79; Higgins v. Moore, 34 N.Y. 417. A person who is a salaried agent, and not acting for a fee or rate per cent. for others, is not a broker. Portland v. O'Neill, 1 Or. 218. "When a broker," says Mr. Commissioner King, in ...