Sams v. Olympia Holding Co.

• Decision Date: 05 August 1929
• Docket Number: 21798.
• Citation: 153 Wash. 254,279 P. 575
• Parties: SAMS v. OLYMPIA HOLDING CO.
• Court: Washington Supreme Court

279 P. 575

153 Wash. 254

SAMS v. OLYMPIA HOLDING CO.

No. 21798.

Supreme Court of Washington

August 5, 1929

Department 1.

Appeal from Superior Court, Thurston County; Wilson, Judge.

Action by J. C. Sams against the Olympia Holding Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Thos L. O'Leary, of Olympia, for appellant.

Troy &amp Yantis, of Olympia, for respondent.

BEALS J.

Plaintiff a real estate broker, as assignee of the partnership consisting of himself and another, sued defendant for the purpose of recovering judgment upon an alleged liability to pay a real estate commission. For the purpose of brevity, plaintiff-appellant will be referred to in this opinion as though he were the sole party who had dealt with defendant.

During the month of January, 1928, defendant, being the owner of a tract of land in the city of Olympia known as the 'Capital Motors property,' and desiring to sell the same, agreed verbally to pay plaintiff a broker's commission of $1,250 upon the rendition of certain agreed services by plaintiff in connection with the sale of the land; the price being fixed at $35,000. Thereafter plaintiff produced one Fred W. Convery, who delivered plaintiff his check for $2,000 to be used as a down payment upon the property in question at defendant's price. After some further negotiations, this check was turned over to defendant, who receipted therefor, cashed the check, and retains the proceeds thereof. Plaintiff, at the time he received the check, gave to Mr. Convery a receipt setting forth in brief the terms of the sale. January 16 a formal contract of sale was entered into between Mr. Convery and defendant, whereby the former agreed to buy the property for $35,000, to be paid in cash on or before February 20, 1928, which time was later extended to March 20. This contract, after providing that, in case the title to the property proved to be merchantable in defendant and if the purchaser should refuse to complete the purchase, the down payment should be forfeited as liquidated damages, continued:

'But it is agreed and understood by all the parties to this agreement that said forfeiture shall in no way affect the rights of either party to enforce the specific performance of this contract.'

Later defendant delivered to plaintiff a letter in the following form:

'January 20th, 1928.

'Sams & Peters, Fifth Ave., East, Olympia, Washington. Gentlemen: Referring to the sale of the property of Capital Motors Corporation described as follows: All of Lot Four and all of Lot Three excepting the West Forty feet of the North One hundred feet thereof, in Block Twenty five of Sylvester's Plat of Olympia, Washington, said sale being made to Fred Convery.

'We hereby agree to pay as commission for said sale to Sams & Peters Twelve hundred fifty dollars ($1250.00) when the sale is completed, it being understood that the price of the property is Thirty five thousand dollars ($35,000.00) cash.

'Very truly yours,

'[Signed] O. M. Green.

'O. M. Green, President.'

Mr. Convery, after consideration, determined, about twenty days before the time fixed in his contract for the payment of the balance of the purchase price, that he would not complete the purchase of the land. For the purposes of this case we will assume that he could have made financial arrangements which would have enabled him to complete the purchase of the property according to the terms of his contract. Three weeks or so after the expiration of the time limited in the contract with Mr. Convery for payment by the purchaser of the balance of the purchase price, defendant sold the property to a third party for $34,000.

Defendant instituted no action against Mr. Convery to enforce specific performance on his part of the contract of sale.

The action was tried to the court without a jury and resulted in a judgment of dismissal from which plaintiff appeals, assigning error upon the rejection of certain testimony, upon the admission of certain other testimony, and upon the entry of judgment dismissing the action.

We find no error in the ruling of the court rejecting the testimony sought to be introduced by appellant, and, in view of our conclusion on the basic facts of the case, the errors which appellant assigns upon the admission of testimony are unimportant.

A contract to pay a broker's commission, unenforceable under the statute of frauds because resting in parol, may become, under certain circumstances, a moral obligation which is sufficient consideration to support a subsequent written agreement to pay a specified sum of money. Muir v. Kane, 55 Wash. 131, 104 P. 153, 26 L. R. A. (N. S.) 519, 19 Ann. Cas. 1180; Henneberg v. Cook, 103 Wash. 685, 175 P. 313; Grant v. Ten Hope, 117 Wash. 531, 201 P. 750; White v. Panama Lumber & Shingle Co., 129 Wash. 189, 224 P. 563.

Conceding that the relations between the parties to this action and appellant's services in producing a prospective purchaser were sufficient to support a written promise on the part of respondent to pay appellant a commission, an examination of the writing upon which appellant relies, being the letter from respondent under date January 20, 1928, above quoted, for the purpose of ascertaining just what respondent agreed to do, becomes necessary. In this letter respondent agrees to pay the commission therein referred to 'when the sale is completed.' It is admitted that the sale to Mr. Convery never was completed, but appellant argues that, because respondent did not attempt to enforce against Mr. Convery specific performance of the contract between him and respondent, the contract purporting to provide for specific performance thereof, in case of the forfeiture of the earnest money, that...