Rousseau v. Rosche

• Decision Date: 11 July 1929
• Docket Number: 21758.
• Citation: 279 P. 80,153 Wash. 54
• Parties: ROUSSEAU v. ROSCHE et al.
• Court: Washington Supreme Court

279 P. 80

153 Wash. 54

ROUSSEAU v. ROSCHE et al.

No. 21758.

Supreme Court of Washington

July 11, 1929

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Stella C. Rousseau, individually and as administratrix of the estate of Orville M. Rousseau, against Frank Rosche and others. Judgment for plaintiff, and defendants appeal. Reversed.

Hayden Langhorne & Metzger, of Tacoma, for appellants.

Edwin H. Flick and A. R. Rutherford, both of Seattle, for respondent.

FRENCH J.

Some time early in the summer of 1925, appellant Rosche, being engaged in the brokerage business, received oral listings of the properties of the Elbe Lumber & Shingle Company. Thereafter and about October 1, 1925, Rosche and one Rousseau, the now deceased husband of respondent, formed a sort of an association or connection, the exact nature of which is not very material, officed together in the city of Seattle, and interested themselves generally as brokers in dealing in timber properties. Thereafter Mr. Rousseau, as appears from the record, seems to have been instrumental in interesting one George Miller in this property, which consisted of lands, timber, logging railroad, logging equipment, timber contracts, forming all together quite extensive holdings. A complete and thorough examination of the properties, such as would naturally be made by a prospective purchaser, would and did take a considerable period of time. There were various negotiations back and forth, in which negotiations Mr. Rousseau seems to have taken the leading part up to the time of his death, which occurred July 23, 1926. Thereafter and on July 26, 1926, Mr. Rosche wrote the following letter to Mrs. Rousseau:

'Seattle, Wash., July 26, 1926.

'Mrs. O. M. Rousseau--My Dear Mrs. Rousseau: Complying with your request for an outline of the different deals pending that Orville and I have had together before his passing away, they are briefly:

'The Elbe Lumber & Shingle Company. The National Lbr Mfg. Co. The Green River Lumber Co. (this came to me while Orville was sick), and the Jackson County Oregon Timber that has been submitted to the Brooks-Scanlon Lumber Company at Bend, Oregon. The Hoods Canal Logging Company, George Miller which was sold October 1, 1925, and still carries an unpaid balance due us from George Miller amounting to $2550.00, less July 1st expense of $30.20 and the amount accruing during July which will be perhaps the same on August 1, 1926. The office books will show the actual amount of all moneys paid in and paid out, the differences are to be adjusted as per books out of moneys due us from Mr. Miller all of which you can verify at your leisure.

'It is my wish and intention that I carry on these pending deals and try to close them for your interest as well as my interest and if you wish we can adjust the office expenses and furniture up to August 1st in a manner that is satisfactory all around.

'Your interest shall be the same as if Orville were still with me and I shall candidly talk over and advise you of everything that transpires and you shall have the privilege to verify them as you see fit.

'Sincerely

Frank Rosche.

'P. S. Since writing George Miller has revived the Tomsen-Clark Timber Co. property.

'Frank Rosche.'

The various negotiations taking place between Miller and the Elbe Lumber & Shingle Company finally, and in the late fall of 1926, culminated in the sale of the property by the Elbe Lumber & Shingle Company to Mr. Miller. Thereafter the Elbe Company agreed to pay certain sums for services rendered, and some cash was paid and notes executed for a portion thereof, the notes running to L. T. Murray, trustee.

This action was commenced by Mrs. Rousseau to recover $12,500, she claiming that amount to be one-half of the commission earned by Rosche and Rousseau and thereafter paid. The case was tried before the court with a jury, and from a judgment in her favor for the full amount this appeal follows.

Many assignments of error have been made, but the conclusion we have reached makes it unnecessary to discuss in detail these various assignments.

It is tacitly admitted by both parties, and clearly appears in the record, that up to the time of the negotiations which covered a period of more than a year, and which culminated in the sale and transfer of the property, the only authority or agreement for a commission which Rosche, Rousseau, or any one else had, was oral. After the sale took place the following book entry was made on the books of account of the Elbe Lumber & Shingle Company:

Account No.

Name Frank Rosche, L. T. Murray, Trust Agreement.

1927 Folio Debits Credits Balance

Feb. 24 to check 3-7-27 CB $500.00

Mar. 7 to check 2-24-27 CB 250.00

Mar. 23 to check CB 500.00

Apr. 27 to Chk...