Taggart v. Hunter

• Decision Date: 16 November 1915
• Parties: TAGGART v. HUNTER ET AL.
• Court: Oregon Supreme Court

152 P. 871

78 Or. 139

TAGGART v. HUNTER ET AL.

Supreme Court of Oregon

November 16, 1915

In Banc.

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

On rehearing and reversed.

For former opinion, see 150 P. 738.

Bean J., dissenting.

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

BENSON J.

Upon the rehearing we have considered but one question: Is the alleged memorandum sufficient to take the case out of the statute of frauds? The first paragraph of the Oregon statute of frauds reads thus:

"In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law." Sec. 808, L. O. L.

Then follows an enumeration of the cases to which the law is applicable. No. 8, the one pertinent herein, was added to the statute in 1909, and reads thus:

"An agreement entered into subsequent to the taking effect of this act, authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission."

The memorandum relied upon in the present case was sought to be established by secondary evidence of its contents, the paper having been lost or destroyed. The plaintiff testified that it read substantially 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 so 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."

This statement, reduced to its simplest terms, is an authorization of plaintiff to sell a particular tract of land at a specified price per acre. It is signed by the party sought to be charged, and, if it expresses the consideration, it is sufficient. The problem submitted then is: What is the true interpretation of the statute? To an unsophisticated layman, reading the two clauses of the law above quoted, it would undoubtedly mean that, if I sell my services as a real estate broker, I cannot recover therefor, unless I have a written memorandum signed by my employer specifying the land I am to sell and the compensation I am to receive for bringing about such sale. It would further impress the aforesaid layman that I must also rely upon the written memorandum as the sole evidence of any agreement to pay me for my services; for in such an agreement it is not apparent that there are any other essential elements.

"The party to be charged" is necessarily the one against whom enforcement of the agreement is invoked, and the only consideration which can be expected from him is to pay for the broker's services. In the case of Fisk v. Henarie, 13 Or. 156, 9 P. 322, the court, speaking of a similar agreement, says:

"The writing in such case need not be signed by both parties, nor contain any terms further than that, if the broker will procure such purchaser, he will be allowed a stated commission."

This interpretation is adopted in the case of Sorenson v. Smith, 65 Or. 90, 129 P. 761, 131 P. 1033, 57 L. R. A. (N. S.) 612, Ann. Cas. 1915A, 1127, wherein Mr. Justice Moore says:

"It is thought that the primary object that induced the enactment of our statute, hereinbefore quoted, demands that, where the original contract respecting the broker's compensation was not in writing, as required, the ratification can only be by a writing."

Again, in the opinion upon rehearing, the same learned justice says:

"Because George Sorenson, the plaintiff's assignor, was employed by, and was the subagent of, F. A. Kribs, then no privity of contract existed between such substituted agent and the defendant, Charles A. Smith, and the latter, never having stipulated in writing to pay a commission to the subagent, did not by negotiating the sale of the lands to C. P. Bratnober and the Storey-Bracher Lumber Company ratify Krib's employment of Sorenson."

In the late case of Taylor v. Peterson, 147 P. 520, Mr. Justice Burnett, after quoting the language of our statute, stated:

"In this respect our Code is more stringent than any other to which our attention has been directed. In mandatory language it forbids proof of any kind other than the writing, yet here the plaintiff would rely upon the oral testimony entirely, unless we may except the newspaper article to which reference has been made. As already pointed out, that does not satisfy the statute, because, for one thing, it does not express the consideration."

In that case the writing signed by the party to be charged said:

"Several weeks ago I made a tender to the authorities through my agent, J. A. Taylor, of my property," referring to property elsewhere described in the article.

It is true that in the decisions there can be found some dicta indicating that the writers are not in full harmony with some of the provisions of the statute of frauds, and would be satisfied with a very slight performance of its requirements. Nowhere do we find any encouragement for the doctrine that its provisions or any one of them can be entirely ignored with impunity. The decisions of other states are of slight value to us in the solution of this problem, by reason of the diverse language used in their statutes. The first important particular in which the statutes differ may be best appreciated by noting the fact that the Oregon statute declares the agreements in the cases mentioned to be void. We find this to be the case in only eight other states, viz., Alabama, Michigan, Nebraska, Nevada, New York, Washington, Wisconsin, and Wyoming. In California, North Dakota, South Dakota, and Montana the contract is declared to be "invalid," or "not valid." The remaining states declare either that no evidence other than the writing is competent in the cases specified, or that no action shall be maintained thereon. It will be observed that in our state, and in the few others named above as in the same class, the law challenges the vitality of the contract or agreement, while in the others the statute affects only the remedy. The true interpretation of our law is clearly expressed in the case of Pierce v. Clarke, 71 Minn. 121, 73 N.W. 523, in which the following language occurs:

"The English statute of frauds differs from ours. That provides that no action shall be brought upon such contracts unless they are in writing, and signed by the party to be charged. * * * In some instances--perhaps in many--under the English statute, such contracts would not be absolutely void, as under ours. It is proper here to call attention to an erroneous statement

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