Thompson v. English

• Citation: 76 Wash. 23,135 P. 664
• Parties: THOMPSON et al. v. ENGLISH.
• Decision Date: 10 October 1913
• Court: Washington Supreme Court

135 P. 664

76 Wash. 23

THOMPSON et al. v. ENGLISH.

Supreme Court of Washington

October 10, 1913

Department 2. Appeal from Superior Court, Clarke County; Donald McMaster, Judge.

Action by S.W. Thompson and another, doing business as Thompson &amp Swan, against A. E. English, to recover broker's commissions. Judgment for defendant, and plaintiffs appeal. Affirmed.

R. C Sugg, of Vancouver, for appellants.

H. L Parcel, of Vancouver, for respondent.

MAIN. J.

This action was brought for the purpose of recovering a broker's commission for the sale of real estate. On July 20, 1911, the plaintiffs were copartners engaged in the real estate business in the city of Vancouver, Wash. On that date they and the defendant entered into a written contract whereby the plaintiffs were authorized to act as the sole agents of the defendant until October 20, 1911 in the sale of the property described therein; the defendant in case of sale, agreeing to pay a specified rate of commission. The real property to be sold was described as follows: 'Seventy-nine acres in section 30, township 2 N., range 3 E. W. M., Clarke Co., Wn. Owner, A. E. English.' Thereafter, and on September 19, 1911, the plaintiffs claim to have secured a purchaser for this property upon the terms mentioned in the written contract. The defendant having refused to pay the commission agreed upon, the plaintiffs commenced this action against him to recover the same, and on November 17, 1911, filed their complaint, in which they alleged, among other things, that they and the defendant had, on July 20, 1911, entered into a written contract wherein the defendant employed the plaintiffs to secure a purchaser of certain land in Clarke county, Wash., together with certain personal property; that the terms of the contract provided that the purchase price was to be $8,500, and defendant agreed to pay plaintiffs a commission of 5 per cent. on such sum if they succeeded in securing a purchaser prior to October 20, 1911. The defendant in his answer admitted the execution of a written contract, but denied the other allegations. The description of the real estate to be sold as contained in the contract is not specifically set forth in the complaint; neither is the contract nor a copy thereof attached to the complaint or set out therein. An affirmative defense is pleaded in the defendant's answer, the substance of which is that in September, 1911, he entered into a contract with the plaintiffs for the sale of certain real estate in Clarke county, Wash., and that he always has been, and now is, ready and willing to sell said real property as agreed, and upon the terms mentioned in the contract, and is willing to give a good and sufficient warranty deed and furnish an abstract of title to the land described in the contract to any purchaser who complies with the terms of the contract. The plaintiffs thereupon replied, denying each and every allegation contained in the separate answer. The cause thereafter came on for trial before the court and a jury upon the issues made by the complaint, answer, and reply. At the trial it was stipulated that the defendant was the owner of the property claimed to have been sold by the plaintiffs, which was described as follows, to wit: The east half of the northeast quarter of section 30, township 2 north, range 3 E. W. M. in Clarke county, Wash. The written contract entered into between the plaintiffs and the defendant, dated July 20, 1911, was offered and admitted in evidence without objection. At the close of the case, the plaintiffs and the defendant each moved for an instructed verdict. The jury was dismissed and the motions argued. After argument the court announced that the case was sufficient except that he doubted the sufficiency of the description of the real estate in the...