Sorenson v. Kribs

• Decision Date: 05 December 1916
• Citation: 161 P. 405,82 Or. 130
• Parties: SORENSON v. KRIBS.
• Court: Oregon Supreme Court

161 P. 405

82 Or. 130

SORENSON v. KRIBS.

Supreme Court of Oregon

December 5, 1916

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by N. V. Sorenson against Frederick A. Kribs. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 65 Or. 78, 129 P. 757, 131 P. 1022, 51 L. R. A. (N. S.) 612, Ann. Cas. 1915A, 1127.

This is an action by Mrs. N. V. Sorenson, as the assignee of her husband, George Sorenson, a real estate broker, against F. A Kribs, to recover damages. The material facts are that C. A Smith, of Minneapolis, Minn., was the equitable owner of 7,480 acres of timber land in Douglas county, Or., and employed the defendant, a real estate broker, of Portland, in this state, to negotiate a sale of the real property. In order to procure a purchaser, Kribs appointed Sorenson, who on September 28, 1906, produced J. O. Storey, to whom the defendant gave an oral option to buy the land at $187,000, on account of which $50,000 was required to be paid within 60 days. Sorenson assured Storey he could have all the time desired in which to make the partial payment, and for that reason he neglected to pay the stipulated sum within the time limited, whereupon the option was declared at an end. Thereafter Storey commenced an action against Kribs to recover the damages which he had sustained, consisting of more than $2,000 expended in examining the timber growing on the land and $63,000, which extra sum he could have realized upon a resale of the premises. While that action was pending Storey, in the name of the Storey-Bracher Lumber Company and C. P. Bratnober, entered into a written contract with Smith to purchase the land for $300,000; the vendees stipulating to save the vendor harmless from any claim for a commission for negotiating a sale of the land, except that of Kribs, whereupon that action was dismissed. In an action by this plaintiff as the assignee of her husband against Smith to recover a commission on account of the sale thus consummated, she recovered $15,000; but the judgment was reversed on the ground that Kribs had no authority to bind Smith to pay a commission. Sorenson v. Smith, 65 Or. 78, 129 P. 757, 131 P. 1022, 51 L. R. A. (N. S.) 612, Ann. Cas. 1915A, 1127. The facts here involved, and referred to in the opinion in that case, are set forth as matters of inducement in the complaint herein, which charges, in effect: That about July--, 1907, the defendant, assuming to act for Smith and representing that he had authority to do so, agreed with Sorenson to obligate Smith to pay a commission of 5 per cent. of the purchase price of the land, continued to employ Sorenson to procure a purchaser of the real property, and instructed the broker further to negotiate with Storey in order to induce him to pay a greater sum than he had originally offered for the land, and Kribs agreed to pay Sorenson 5 per cent. of the purchase price if he could find a buyer who was able, ready, and willing to pay a sum which was acceptable to Smith. That, pursuant to that employment, Sorenson at the defendant's request continued to negotiate with Storey until October 31, 1909, when he was induced to purchase the land for $300,000, which sum was satisfactory to Smith, whereupon Storey, in the name of the Storey-Bracher Lumber Company, and Bratnober, with whom Storey was associated, made a contract with Smith to buy the land for the sum last named, which amount has been paid. That by reason of the premises Sorenson became entitled to a commission of $15,000, the payment of which was demanded of Smith, who refused to comply therewith on the ground that Kribs had no authority to bind him to pay any commission. That in consequence thereof Sorenson was damaged in the sum of $15,000 and interest thereon at 6 per cent. per annum from October 31, 1909. That the defendant had no authority to obligate Smith to pay any sum as commission, and Sorenson's claim therefor was assigned, prior to the commencement of this action, to the plaintiff, who is the owner and holder thereof.

The answer unqualifiedly denies each averment of the complaint generally. For an affirmative defense, the facts relating to the first option and the cancellation thereof are set forth, and it is substantially alleged that when Storey's original agreement was terminated the defendant informed Sorenson thereof and notified him that his employment as a broker or otherwise was ended; that whatever services may have thereafter been rendered by Sorenson, in connection with the sale of the land, were not performed for the defendant acting for himself, or for any other person under his employment. It is further averred that, subsequent to the termination of the original option, Storey and Bratnober negotiated for the purchase of the land directly with Smith, who refused to sell to them unless Sorenson would waive any claim that he might have for a commission, whereupon Storey, acting for himself, entered into an agreement with Sorenson by the terms of which it was stipulated that, if Bratnober would furnish all the money necessary to purchase the land and appoint Sorenson and Storey brokers to negotiate a resale of the premises on or before July 1, 1910, they should be paid a commission for their services; that Bratnober complied with these conditions, and Sorenson in consideration thereof waived all claims for a prior commission.

The reply put in issue the allegations of new matter in the answer, and, the cause having been tried, the jury found for the plaintiff as demanded in the complaint, viz. $19,925, and, judgment having been rendered on the verdict, the defendant appeals.

R. R. Giltner and Guy C. H. Corliss, both of Portland, and Edwin H. Flick, of Seattle, Wash. (Giltner & Sewall, of Portland, on the brief), for appellant. Martin L. Pipes, of Portland (George A. Pipes, of Portland, on the brief), for respondent.

MOORE, C.J. (after stating the facts as above).

Preliminary to a consideration of the errors assigned it should be said that this action is founded upon the legal principle, established in this state, that when an agent represents he is empowered to make a particular contract on behalf of his principal and no such authority has been bestowed, the party to whom the statements were made by relying thereon and complying with the terms of the supposed agreement so concluded, can maintain an action ex contractu against the agent, on the implied warranty, to recover the damages thus sustained. Cochran v. Baker, 34 Or. 555, 52 P. 520, 56 P. 641; Anderson v. Adams, 43 Or. 621, 74 P. 215. See, also, Kennedy v. Stonehouse, 13 N.D. 232, 100 N.W. 258, 3 Ann. Cas. 217, and Haupt v. Vint, 68 W.Va. 657, 70 S.E. 702, 34 L. R. A. (N. S.) 519.

When this cause was submitted to the jury, the defendant's counsel moved for a directed verdict in favor of their client, on the grounds that the evidence received disclosed the claim sued on was not assigned prior to the commencement of this action; that the plaintiff introduced no testimony tending to show any want of authority on the part of the defendant to bind Smith to pay a commission; and that this action is founded upon a contract alleged to have been made in July, 1907, when no evidence thereof was offered. Considering these matters in the order stated, attention is called to the case of Sorenson v. Smith, supra, where the broker's claim now asserted against the defendant for a commission for negotiating the same sale is alleged to have been assigned to this plaintiff. At the trial herein George Sorenson testified, on direct examination, that prior to the commencement of this action he assigned his claim for a commission to his wife, who then was the owner and holder thereof. On cross-examination, however, in answer to the inquiry, "Who did you tell her you had a commission from?" he replied, "From C. A. Smith. Q. Did you ever make any other assignment to her? A. No." On redirect examination, the attention of the witness was called to the testimony which he had thus given on cross-examination, and he was asked whether or not, before the commencement of this action, he had assigned his claim for a commission to his wife. He answered: "I misunderstood the question. I meant, I made the assignment of this $15,000. * * * Q. That is the claim in this case? A. Yes." On recross-examination he was asked: "When was it you made the assignment?" He responded: "Just before this suit was brought. Q. When was that? A. About a year and a half ago. Q. What did you say to your wife? A. I said I am assigning this claim. You will have to bring a new suit. Q. What is this claim? A. This $15,000. Q. What is this claim you assigned to your wife? A. My claim against Kribs. Q. What for? A. Commission of $15,000."

It needs no argument to show that the broker's claim for a commission against Smith, which was assigned to this plaintiff before she began her action against him, would not suffice as a transfer of a cause of action against Kribs, and unless she obtained an assignment of the claim against the latter before this action was instituted, she was not entitled to a recovery herein. From Sorenson's contradictory statements, relating to the assignment, the court could not, as a matter of law, say which sworn declaration was true. It was therefore the province of the jury, from a careful comparison and consideration of such testimony, to determine whether or not the assignment of the claim against Kribs was made before this action was commenced. Pacific Biscuit Co. v. Dugger, 42 Or. 513, 70 P. 523. No error was committed in respect to the assignment.

It will be remembered the complaint charged that the defendant represented he was authorized to obligate Smith to pay a broker's commission in case a...