State v. Stiles

• Decision Date: 10 October 1916
• Parties: STATE v. STILES.
• Court: Oregon Supreme Court

160 P. 126

81 Or. 497

STATE v. STILES.

Supreme Court of Oregon

October 10, 1916

Department 2.

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

H. A Stiles was convicted of larceny by bailee, and he appeals. Affirmed.

Bean J., dissenting.

W. T. Hume, of Portland (H. Daniel, of Portland, on the brief), for appellant. C. C. Hindman, of Portland (Walter H. Evans, Dist. Atty., of Portland, on the brief), for the State.

MOORE C.J.

It is contended that an error was committed in denying motions, interposed when the state had introduced its evidence and rested, and also when all the evidence had been received, to direct the jury to return a verdict for the defendant, on the ground that the evidence disclosed the money alleged to have been misappropriated was paid over to him pursuant to a written contract whereby the title to the property passed with a delivery of the possession. The evidence shows that the defendant is a real estate broker and engaged in that business at Portland, Or., that F. F. Waffle, Emma Waffle, and Maude M. Kent, on March 27, 1914, were the lessees of the John A. Nelson farm, situate near Warren, Or., and the owners of live stock, farming implements, and hay then on the demised premises, at which date they executed to the defendant a writing whereby he was authorized, within 15 days, to secure an assignee of the lease and a purchaser of the stock, etc., "for the sum of $3,250 net to us, all cash for the equipment, and assume the said lease." The writing contains the following clauses relating to the defendant, viz.:

"And you are hereby authorized to accept a deposit on the purchase price, and to execute a binding contract on our behalf. If the above-described property is sold within the life of this contract to any purchaser to whom you have submitted and offered the property during the term of this agreement, we hereby agree to pay you all over $3,250 that you sell for as commission, and you are hereby authorized to retain said commission out of any money which may be paid to you on account of said purchase price or as a deposit."

The limitation thus prescribed, within which a sale of the property might be made, was orally extended by the owners from time to time. Pursuant to such authority the defendant advertised the property for sale for $4,000, whereupon Mrs. Elizabeth C. Ross, having seen the published notice, called at his office and inquired about the lease, the live stock, and the hay. She then owned in Portland a house and lot, estimated to be worth $3,500, which real estate was subject to a mortgage of $800, and she desired to execute a deed of her home in part payment of the consideration stated in the advertisement. Soon thereafter the defendant with an automobile took her and two young men who subsequently became her sons-in-law to the Nelson farm where they inspected the property offered for sale. Mrs. Ross testified that having talked with Mr. Waffle she said to the defendant on the return journey:

"Mr. Stiles, I don't see what you fetched us down here for. This is a cash proposition."

He replied:

"Never mind that. Just leave that to me. We don't have to have $2,000 cash."

She also stated upon oath that in a day or two the defendant notified her he had prepared a contract for the purchase of the property and desired her to call and sign the agreement. She complied with the request, saying:

"When Mr. Stiles handed me the contract to sign there were certain things we had to meet before I could raise the $2,000, and Mr. Stiles understood this completely. I told Mr. Stiles 'I don't think I ought to sign that contract until I hear from Mr. Jackson.' He was the man that held the $800 mortgage on my place at this time, and the one that I wanted to get it increased with. 'If he didn't come through with what I want, I can't raise that $2,000.' Mr. Stiles says, 'Never mind, Mrs. Ross, I am making about $500 a month. I will help you out of that if you can't get it from Mr. Jackson."'

She signed the contract May 16, 1914, then orally offering to pay $2,000 in cash and to give a chattel mortgage on the property as security for the remainder of the purchase price. She hoped by executing a new mortgage on her home for $2,300 to have $1,500 remaining after discharging the prior lien and in order to obtain the latter sum the defendant agreed to apply to Mr. Jackson therefor. Mrs. Ross also expected to secure from a Mrs. Fisher a loan of $600 and from George G. Allison $300, thus making $2,400 with which to pay the $2,000 on account of the purchase of the stock, implements, and for an assignment of the lease, and to defray the expense of moving to the farm. At the time the contract was signed the defendant desired her to make a deposit with him of some money on account of the agreement, and three days thereafter she took to him a check for $200 for that purpose, whereupon a receipt therefor was indorsed on the agreement above the signature of the parties. The contract was a printed form on which the written part left meaningless the impressed word "dollars," now marked by parentheses. The amended writing reads:

"This agreement entered into this 16th day of May, 1914, by and between H. A. Stiles, of Portland, Or., and Mrs. E. C. Ross, purchaser, address 5204 43d St. S. E., Portland, Oregon, witnesseth: That H. A. Stiles, agent, agrees to sell, and the aforesaid purchaser agrees to buy the stack of feed and implements on the John A. Nelson farm, 1 3/4 miles west of Warren, Or., according to a list already submitted, and take over the lease now held by F. F. Waffle and associates, subject to confirmation by owners, for the purchase price of $4,000, including the rent to April, 1915 (dollars) upon the following terms: $2,000 cash when papers are ready, balance to be arranged, and a part of the old hay and hogs that may be sold is to be applied on the balance when sold and subject to as many conditions and restrictions as may run with the land. It is further agreed that Mrs. Ross is to have credit for the hogs and calves, etc., that has been sold off the farm by F. F. Waffle. H. A. Stiles hereby acknowledges receipt of $200, May 19th (dollars) as earnest money and part of the purchase price, which deposit shall be returned in case owner does not confirm sale. H. A. Stiles, Agent, by R. A. Stiles. Mrs. E. C. Ross, Purchaser."

Mrs. Ross further testified that upon paying $2,000 on the purchase price of the property she expected to secure the remainder by giving a mortgage upon the stock, implements, and crop; that she did not understand the chattel mortgage was not satisfactory; that she paid the $200 on Mr. Stiles' word that if a further loan could not be secured from Mr. Jackson the defendant would help her; that failing to get the money from the mortgagee, Mr. Stiles could have obtained from another source a loan upon her home of only $1,250; that if he had been able to secure a loan of $1,850 she, with the help of Mrs. Fisher and Mr. Allison, could have raised the $2,000 required by the terms of the contract; that when the defendant heard from Mr. Jackson and she was notified he could not let her have the money, she abandoned the idea of giving a chattel mortgage; that no bill of sale of the stock, etc., was ever tendered to her, no demand made upon her for a commission; that the $200 which she paid had never been returned to her; and that the proposed sale was never confirmed.

Her testimony is corroborated in most particulars by that of F. E. Olson, a son-in-law, who went in the automobile with her to examine the property offered for sale and who was also with her May 16, 1914, when she signed the contract. This is the substance of the testimony which was received when the first motion for a directed verdict was interposed.

F. F. Waffle, a witness for the defendant, was interrogated on direct examination as follows:

"I will ask you to state whether or not on the 19th day of May of this year you saw that contract?"

He replied:

"Mr. Stiles showed me the contract, but I didn't read it. He told me that he had received $200 from Mrs. Ross under certain conditions, if she could put the deal through, and she could put the deal through if I would accept her terms; but I didn't read this at that time. Q. Did you confirm the sale as he had reported it to you? A. Well, no. Q. What did you tell him? A. He told me that Mrs. Ross could pay us $2,000 cash, if we would give her time on the balance, and I says, 'What security will she give?' And he says, 'A chattel mortgage on the stock.' I told him, No, I couldn't accept a chattel mortgage on the stock, but I would accept the $2,000 cash, if she could give us security, bankable notes, or a first mortgage on Portland real estate, and he said he thought he could put it through that way. Q. Then the provision in the contract of the $2,000 cash, and

the balance to be arranged, that was approved by you? A. In that way; that I would accept-- Q. To be arranged satisfactorily to you? A. Yes, sir; with the proper security. Q. The sale was confirmed then, as far as you were concerned, according to that arrangement; $2,000 cash and the balance to be arranged to your satisfaction? A. Yes, sir. Q. And did Mr. Stiles have authority to retain the $200 that was paid on the purchase price? A. Not from me; no."

The witness was further interrogated as follows:

"Q. This is the contract that you had with him, is it not? Examine that paper. Do you recognize those signatures? He answered: Yes, sir; those signatures are correct. There is

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