Taggart v. Hunter

• Decision Date: 30 July 1915
• Citation: 150 P. 738,78 Or. 139
• Parties: TAGGART v. HUNTER ET AL.
• Court: Oregon Supreme Court

150 P. 738

78 Or. 139

TAGGART v. HUNTER ET AL.

Supreme Court of Oregon

July 30, 1915

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by J. W. Taggart against J. N. Hunter and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action to recover a broker's commission on a sale of real estate. Defendants appeal from a judgment on a verdict for $4,500 in favor of plaintiff. The complaint alleges that the defendants employed the plaintiff to procure purchasers for certain timber lands, and agreed to pay him a reasonable compensation therefor; that he procured the purchasers; that $5,000 is a reasonable compensation; that $500 was paid thereon and no more. All of these allegations are denied by the answer.

Harris J., dissenting.

A. L Veazie, of Portland (Veazie, McCourt & Veazie, of Portland on the brief), for appellants. Martin L. Pipes and George A Pipes, both of Portland (John B. Ryan, of Portland, on the brief), for respondent.

BEAN J.

The errors assigned relate principally to the sufficiency of the evidence under the statute of frauds and to the admission of oral evidence, which the defendants maintain was barred by subdivision 8, § 808, L. O. L. From the bill of exceptions it appears that upon the trial plaintiff testified to a verbal employment of himself to sell the lands. Upon objection being made counsel for plaintiff stated that a writing had been given, but was lost, offered to prove the contents thereof, and introduced evidence tending to show that the memorandum had been mislaid and could not be found. The substance of plaintiff's testimony as to the contents of the agreement, introduced over defendants' objection, was as follows:

"I met Mr. Hunter on the sidewalk in Bend, and I told him I had a buyer for a tract of yellow pine timber, and I wanted to know if he knew of any. He says: 'Yes, John; we have got the best tract in Oregon.' I says, 'How much is it?' He says, 'Practically 27,000 acres.' And he says, 'We have got it'--no, excuse me. I asked him if he could deliver it; and he told me they could, that they had it tied up with an option, but their time was very short, and they had to handle it quick, or they would lose it. 'Well,' I says, 'how much will it take to handle it?' and he says, 'about half a million dollars.' 'Well,' I says, 'I have only one party to present this to, and they are good people.' I says, 'I think that they are able to handle it.' And he wanted to know where they

were. I told him that the secretary and treasurer of the company was here in Portland, and that he was the only man that I wanted to present it to; that the tract would not be peddled around, but that I would have to have written authority to present this tract to them, because he would not allow any bullconning. * * * He told me he would give it to me. I says, 'Now, if you will fix that up, authorizing me to sell this tract of timber, and state in it a preliminary of what the tract contains, and so forth, and so forth, so I can present it intelligently, and give me the writing, I will take it to Portland.' "

Thereupon plaintiff testified that defendant Hunter gave him a writing in response to the conversation at the office of the defendants. When asked what the letter contained, Taggart stated that it was in effect as follows: J. W. Taggart: "I hereby authorize you to sell this tract of yellow pine timber," located in Crook county, a plat of which is inclosed, and stating how many thousand acres of the land could be cultivated after the timber was all off, how many thousand feet it cruised to the acre, about the number of logs it was, surface cleared, and the price, $22.50 per acre. "[Signed] Hunter & Staats." Thereupon plaintiff stated that he took the letter and plat to a Mr. Noud, secretary and treasurer of the Noud-Blacker Timber Company, in Portland, a prospective purchaser, and left them with him. Afterwards, in August, Mr. Noud and one Larry S. Franck went to Bend, from which place plaintiff went with them to where Mr. Hunter was taking a vacation on the Metolius river, about 30 miles away, and introduced them to Mr. Hunter. They examined the timber land and had the timber cruised. A stock company composed of Mr. Noud, his father, and associates was formed, and a sale was made to them. Negotiations were pending until about the next December, and considerable correspondence between plaintiff and Noud in regard to the transaction appears in the record. After the deal was closed defendants paid plaintiff $500 for his services, he protesting that nothing less than $5,000 was sufficient; that this amount was a reasonable compensation. Defendant Hunter told plaintiff that it was "an awful lucky thing that you got those fellows," and that there would be a big thing in it for plaintiff if the deal went through. Hunter was called as a witness for plaintiff, and testified that the land in question was sold by L. S. Franck to the Northwestern Timber Company for $488,000; that he and Mr. Staats, who are real estate dealers, received about $23,000 profit from the deal, $10,000 of which was stock in the corporation; that they held an option on the land for which they paid $500. Defendants objected to all this testimony, moved to strike it out for the reason stated, and at the close of plaintiff's case moved for a nonsuit upon the ground that the evidence was not sufficient to be submitted to a jury, which motions were denied. Thereupon defendants introduced evidence tending to show, among other things, that defendants paid plaintiff $500, for the reason that Mr. Noud took $5,000 of stock in the purchasing company. Defendant Hunter also testified on behalf of the defendants in part as follows:

"I never told the plaintiff I would give him anything he might ask, or words to that effect, in case he found a buyer for this land, or anything of the kind. His testimony in that respect is not true. At the time I gave him the map or plat containing a description of the land, the only writing I gave him, according to the best of my knowledge, was just a description of the land, telling how many acres there were in the tract, about 22,101 acres. * * * I could not say whether there was a letter, or whether it was written on the plat. * * * He was down at Portland about a week, and when he came back he said, 'Boys, I am sorry I could not do anything with the land in Portland.' He said that he put it up to Mr. Noud, but that the tract was too large for him to handle, so we did not think anything more about it."

Hunter stated that the $500 was paid to the plaintiff as a present because of the fact that Mr. Noud had taken $5,000 of the stock of the purchasing company. On cross-examination, he testified that defendants gave the plaintiff the plat because he said, "I am going to Portland, and I might be able to do something with this land for you"--that he might find them a buyer. Thereupon the witness was asked this question: "Q. Well, what did you give it to him for?" To this question the defendants objected on the ground that oral evidence is incompetent to prove the employment of plaintiff, which objection was overruled by the court, and the defendants saved and were allowed an exception to the ruling, whereupon the witness answered:

"A. Well, he said he thought he could get us a buyer for this land, and that was the object. We thought we would give it to him and let him try. We knew he could not do anything without a plat or a description of the land. We would have been glad for him to furnish us a buyer. We intended for him to get a buyer if he could. We gave him a description of the land in writing, with the price, $24 an acre, and let him bring it to Portland."

The defendant W. H. Staats was called as a witness on behalf of the defendants, and, being sworn, testified as follows:

"I saw the plat and the writings that were delivered to Mr. Taggart about the 10th of July, 1910, which he has testified about and which he brought down to Portland to show to Mr. Noud. The land that we had an option on was blocked off on the plat with red ink, and we wrote a little description, telling the number of acres, 22,101, and the lay of the land, and that it was

good grazing land after the timber was taken off, and that is about all there was on that plat. There was no other writing besides the plat. The price was stated, $24 per acre."

On cross-examination, this witness stated that the writing given plaintiff was written by Mr. Hunter, but was not signed; that it did not indicate that Mr. Hunter had the land for sale, but was just a piece of paper with the price on it; that defendants knew plaintiff was coming to Portland, and expected him to use the plat; that plaintiff asked defendants for the plat, and said:

" 'I am going to Portland, boys, and I understand you have got some yellow pine timber to sell.' We told him we had, and he said, 'If you will make me a plat of it, I will take it along, and maybe I can do something with it.' We gave it to him on those terms, and he took it along." No objection was made to the cross-examination of Mr. Staats.

It is contended by counsel for plaintiff that the direct and cross examination of defendants discloses the contract of employment alleged in the complaint; that no express promise to pay was necessary to be proved (citing Kiser v Holladay, 29 Or. 338, 45 P. 759); that where a party admits the existence of an agreement within the statute of frauds, or permits parol evidence of its contents to be proved without objection, he waives his right to require a writing (citing Sorenson v. Smith, 65 Or. 78, 92, 129 P. 757, 131 P. 1022, 51 L. R. A. [ N. S.] 612, Ann. Cas. 1915A, 1127; Scofield v. Stoddard, 58 Vt. 290, 5 A. 314; ...