Taylor v. Peterson

• Citation: 147 P. 520,76 Or. 77
• Parties: TAYLOR v. PETERSON. [d]
• Decision Date: 30 March 1915
• Court: Supreme Court of Oregon

147 P. 520

76 Or. 77

TAYLOR v. PETERSON. ^[d]

Supreme Court of Oregon

March 30, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by James A. Taylor against John H. Peterson, to recover a broker's commission for the sale of land. Judgment for the defendant on nonsuit, and plaintiff appeals. Affirmed.

The most essential allegation of the complaint is the following:

"That commencing on or about January 1, 1909, and ending on or about February 1, 1912, the plaintiff, at the special instance and request of said defendant, performed work labor, and services for said defendant in negotiating for the sale of the above described property and as a direct result of said negotiations, work, labor, and services, and through the efforts of said plaintiff, said property above described was sold for said defendant for the sum of $35,000."

Asserting that the reasonable value of plaintiff's services mentioned is $5,000, and that the defendant repeatedly agreed that said sum should be considered between them as such reasonable value, the plaintiff demands judgment for that amount. The answer traverses all the allegations of the complaint, and alleges:

"The contract set forth in the complaint is oral and not in writing and is void by virtue of section 808 of Lord's Oregon Laws."

The reply does not deny that the contract was oral, but does traverse the conclusion of law, to the effect that the agreement is void under the statute of frauds of this state. At the close of plaintiff's case in a trial by jury the circuit court granted a judgment of nonsuit on motion of the defendant, and the plaintiff appeals.

Frank F. Freeman, of Portland, for appellant. M. M. Matthiessen, of Portland (Wood, Montague & Hunt, of Portland, on the brief) for respondent.

BURNETT J. (after stating the facts as above).

The statute in question, so far as applicable to this case, 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: * * * 8. 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." L. O. L. § 808.

The last clause, No. 8, was embodied in an amendment to this section by the act of February 9, 1909 (Laws 1909, p. 69) which took effect on May 21st of that year.

In support of his contention the plaintiff testified as follows:

"In January, 1909, Mr. Peterson suggested my making an effort to dispose of his property to the city. The matter was talked over. I was prepared to put the tender in at that time, and Mr. Peterson finally suggested there might be a change of administration, there might be an election in a few months, and it might be well to wait, thinking probably that the term of the administration was nearly expired, and they might not care to take it up until after election and let it lay over until the new officers were installed, which I did. He confirmed the matter, I remember, almost immediately. I think early in July, 1909, my first tender, my original tender, was a proposition to sell for a certain figure, or to trade for a 30-year lease of a water front at the foot of Stark street, which the city owned. Mr. Peterson proposed to trade even for the lease; he was to erect a concrete dock there."

By timely objection the defendant opposed the consideration of such testimony on the ground that the evidence to support the contract described in the complaint must be in writing. The plaintiff as a witness also related a number of oral declarations of the defendant made in 1911, to the effect that he would pay plaintiff just the same. He also introduced in evidence the following documents: (1) The tender he made to the city of Portland under date of August 4, 1911, offering the property for sale at $35,000; (2) an offer of J. W. Travers proposing to sell the same property to the city for the same price; (3) the report of the committee on ways and means of the council of the city of Portland, recommending that among others the tenders of J. A. Taylor and J. W. Travers be placed on file, and submitting an ordinance authorizing the mayor to offer to the owner of the property in question the sum of $35,000 in jail bonds at par; and (4) a transcript of the record of a conveyance from the defendant and his wife to the city of Portland for the realty named, in which the consideration of $35,000 was expressed. The declarations of several witnesses as to the reasonable value of the services of a real estate broker who effected the sale also appear in the record. The plaintiff testified to the effect that he interviewed various members of the city council and endeavored to create public sentiment in favor of the purchase of the tract whereon to build a city jail, and introduced an article, signed by the defendant and published in a newspaper in the city, treating of the desirability of the premises in which he said, under date of July 31, 1909: "Several weeks ago I made a tender to the authorities through my agent, J. A. Taylor, of my property," referring to that already mentioned.

The foregoing is a fair résumé of all the testimony introduced on behalf of the plaintiff. The only writing said to be subscribed by the defendant imputing agency to the plaintiff is the newspaper article. That, however, does not purport to be a contract, and does not express any consideration. The principal question to be decided is the one ruled upon by the trial court, viz., whether the plaintiff proved a case sufficient to be submitted to the jury. The utmost that can be claimed by the plaintiff, in view of his testimony, is that in January, 1909, before the enactment of the statute mentioned, the defendant requested him to induce the city to purchase the property. There is no testimony whatever tending to show that the plaintiff did anything in response to this request until July of that year. One party may request another to perform for him certain services, but no obligation or contract to pay for such services arises until they are performed. We must remember that the complaint is laid on...