Stone v. Bradshaw

• Decision Date: 04 May 1942
• Docket Number: 6990
• Citation: 128 P.2d 844,64 Idaho 152
• Parties: D. A. STONE, doing business under the firm style name of D. A. STONE REALTY COMPANY, Appellant, v. JAMES BRADSHAW, ROY BRADSHAW and LERAY BRADSHAW, Respondents
• Court: Idaho Supreme Court

128 P.2d 844

64 Idaho 152

D. A. STONE, doing business under the firm style name of D. A. STONE REALTY COMPANY, Appellant, v. JAMES BRADSHAW, ROY BRADSHAW and LERAY BRADSHAW, Respondents

No. 6990

Supreme Court of Idaho

May 4, 1942

On Rehearing September 17, 1942

CONTRACTS CONSTRUCTION OF-EVIDENCE-BROKERS' COMMISSION CONTRACT-PLEADING-COMPLAINT.

1. Where option giving broker the right to sell described real and personal property for a specified price and letter of transmittal referring to broker's commission were written upon the same piece of paper and at the same time, the option and letter constituted an entire "unilateral contract" between the parties and was required to be so construed.

2. Where a unilateral contract fails to express the agreement between the parties, and an agreement is made on the same paper, and delivered as a part of the contract, the whole agreement constitutes a full contract and the memorandum is as much a part of it as if written in the body.

3. A memorandum on a written contract qualifying or restraining its operation or indorsed thereon contemporaneously with execution of the instrument forms a part of the contract and binds the parties to the same extent as if embodied in the instrument.

4. In the absence of anything to indicate a contrary intention instruments executed at the same time by the same parties for the same purpose, and in the course of the same transaction are in the eyes of the law one instrument and will be read and construed together as if they were as much one in form as they are in substance.

5. Under statute, no commission can be collected for finding or procuring by one person of a purchaser of real estate of another unless payment of such commission shall be provided for in writing signed by the owner or his representative. (I.C.A., sec. 16-508.)

6. In broker's action for commissions, allegation of complaint that contract of employment was signed by the owners of the property to be sold or their representative was required to be taken as true for the purposes of defendant's demurrer. (I.C.A., sec. 16-508.)

7. A complaint based on contract is generally held to be sufficient if it states the making thereof, the obligations thereby assumed and the breach, and the contract in such case contains the primary right of the plaintiff and in the obligation assumed by the defendant is found his duty, and his failure to comply therewith constitutes the breach, and when these statements are supplemented with a statement of the amount claimed and a prayer for judgment, the complaint is complete.

8. A complaint besides the title of the action is only required to contain a statement of the facts constituting the cause of action in ordinary and concise language and a demand for relief. (I.C.A., sec. 5-605.)

9. Every reasonable intendment will be made to sustain a pleading.

10. A contract should be construed most strongly against the party preparing it or employing the words concerning which doubt arises, and when there is a doubt as to the meaning of the words of a contract, a party will be held to that meaning which he knew the other party supposed the words to bear.

11. Where landowners prepared and transmitted to broker contract authorizing broker to find a purchaser for described land and personalty and used words which were ambiguous, the contract was required to be construed most strongly against land-owners.

12. Where language used in a contract is obscure, uncertain or ambiguous, extrinsic evidence may not be introduced to affect, add to or make over the written instrument, but is admissible to show the true intention of the parties.

13. Oral evidence may be introduced to show what was meant by the use of certain words contained in a contract in order to explain what was meant by the language used.

14. Testimony introduced to explain the meaning of words in a contract defines or translates the language of the instrument and does not vary or add to the terms of the writing, and does not fall within the "parol evidence rule" but is admitted for the purpose of ascertaining not only the meaning of the words used, but the intention of the parties as expressed in the writing.

15. Where broker claimed that the word "plus" should be added to sentence of letter of transmittal of option that defendant did not "think the price was tuff $35,000 your commission five per cent.", and defendants claimed that the word "less" should be added and the words used were ambiguous, evidence could be received to ascertain the real intention of the parties.

16. In broker's action for commissions, complaint pleading contract of employment equally susceptible of construction that commissions were to be charged to purchaser and to landowners was sufficient against a general demurrer. (I.C.A., secs. 5-605, 5-801, 16-508.

On Rehearing September 17, 1942.

APPEAL from the District Court of the Sixth Judicial District, in and for the County of Custer. Honorable Guy Stevens, Judge.

Judgment sustaining demurrer to complaint and dismissing the action reversed and remanded.

Reversed and remanded. Costs to appellant.

A. A. Merrill and L. H. Merrill for appellant.

Section 16-508, I. C. A.: "Real Estate Commission Contracts to be in writing"--No contract for the payment of any sum of money or thing of value as and for a commission or reward for the finding or procuring by one person of a purchaser of real estate of another shall be valid unless the same shall be in writing, signed by the owner of such real estate or his legal, appointed and duly qualified representative." (Murphy v. Livesay, 34 Idaho 793; Laker Lands and Loans v. Nye, 40 Idaho 793; Thomas v. Young, 42 Idaho 240; McLaen v. City of Lewiston, 8 Idaho 472.)

J. H. Anderson for respondents.

A contract for the payment of a commission for finding or procuring by one person of a purchaser of real estate of another must be in writing and signed by the owner of the real estate. (Sec. 16-508, I. C. A..)

If a contract is one which is required to be in writing, it must be complete in itself. (Vol. 2, Jones on Evidence, 4th Ed., Par. 440; p. 840; Engleson v. Port Crescent Shingle Co., 133 P. 1030.)

A contract required by statute to be in writing can not be extended by parol evidence. (Ricelands & products Co. v. Blevins, 215 P. 402; Hicks v. Post, 96 P. 878; Franke v. Blair Realty Co., 164 N.E. 353.)

A contract for the sale of realty and livestock, where not divisible, is within the statute of frauds as to the entire contract. (Godefroy v. Hupp et al, 160 P. 1056; Leeker v. Marcotte et al, 15 P.2d 969-972.)

To be valid a broker's contract to pay a commission for sale of real estate must be signed by the owner or his duly authorized agent. (Sec. 16-508, I. C. A.; McCarty v. Loupe, 62 Cal. 299.)

BUDGE, J. Givens, C. J., Morgan, and Ailshie, JJ., concur. Holden, J., dissents.

OPINION

BUDGE, J.

On August 21, 1941, appellant filed in the District Court in and for Custer County an amended complaint in which he sought to recover from respondents as and for a commission for the sale of certain real and personal property described in a certain option and a letter on the back thereof, the sum of $ 1750 together with interest. To the complaint respondents filed a special and general demurrer. The trial court sustained the general demurrer. Appellant refused to plead further, and the court entered a judgment dismissing the action, from which judgment this appeal is prosecuted.

The written option, inter alia, provides as follows:

"In consideration of $ 1.00 in hand paid, we James Bradshaw and Roy Bradshaw of Custer County, Idaho do hereby give D. A. Stone, the exclusive right for the period of twenty days to sell the ranch properties described as follows: [Then follows a description of the real and personal property.] All for the sum of Thirty five thousand dollars ($ 35,000.00). Above real and personal property to be free and clear of all liens, and taxes for and through 1939. Forest rights included in this sale. Made and executed this 7th day of December, 1939."

James Bradshaw

Roy Bradshaw"

On the back of the written option there is a letter signed by James Bradshaw bearing date, December 7, 1939, the date of the option. The option and the letter were mailed to and received by appellant.

From the allegation in the complaint it appears that the real and personal property were owned by three brothers, James, Roy and LeRay Bradshaw. It is further alleged that James and Roy Bradshaw signed the option as the duly authorized agents of LeRay Bradshaw, and that James Bradshaw signed the letter as the duly authorized agent of Roy and LeRay Bradshaw.

It will not be necessary to set out in haec verba the letter but only such portions of it as are deemed material, which are as follows:

"I am mailing you this copy to give you the right to sell this layout the next 20 or 25 days which is a good buy fore somebody I really do think. * * * * I do not think the price is tuff. 35000 your com. 5 per sent." (Italics ours.)

The first question for determination is whether or not the option and letter constitute the entire written contract entered into by the parties. Keeping in mind that the option and letter were written upon one and the same paper and not separately, and at the same time, under the authorities hereinafter cited we are constrained to hold that the option and letter constitute the entire contract between the parties thereto and should be so construed.

It will be observed that the contract is a unilateral contract. In 17 C. J. S., p. 716, sec. 298, the following rule is stated:

"* * * where a unilateral contract fails to express the agreement between the parties, and an agreement is made on the same...