Van Orsdol v. Hutchcroft

• Decision Date: 27 March 1917
• Citation: 163 P. 978,83 Or. 567
• Parties: VAN ORSDOL v. HUTCHCROFT.
• Court: Oregon Supreme Court

163 P. 978

83 Or. 567

VAN ORSDOL v. HUTCHCROFT.

Supreme Court of Oregon

March 27, 1917

Department 2.

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Action by T. L. Van Orsdol against R. J. Hutchcroft. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action to recover an alleged commission for negotiating an exchange of property. The complaint charges substantially that at all the times stated therein the plaintiff was a real estate broker; that in February, 1915, the defendant was the owner of a store and stock of goods, which he desired to sell or exchange, and for that purpose engaged the plaintiff to procure a purchaser thereof, or a person who would exchange property therefor; that, pursuant to such employment, the plaintiff secured K. S. Parrott, with whom the defendant effected a trade of his property at a value of $7,000; that in consummating such exchange the plaintiff was the procuring cause; and that the reasonable value of the services which he thus rendered is $200, no part of which has been paid. The answer denies some of the averments of the complaint, admits others, and for a further defense alleges, in effect, that at the time stated the defendant was the owner of the stock of goods and of the store referred to, together with the fixtures therein, and also the owner in fee and in possession of the real property of which the store formed a part and upon which it was built; that the defendant desired to exchange such goods, store, fixtures, and real property as an entirety for other land of equal value; that in February 1915, he exchanged such property as a whole with K. S Parrott for realty then belonging to him and other lands owned by John Loop, all of which was traded as an entire contract; that such exchange is the same sale of the store and stock of goods referred to in the complaint herein; that the defendant did not enter into any written contract of employment with the plaintiff to procure a purchaser of such property, or any part of it, as required by section 808, L O. L.; and that the agreement mentioned in the complaint was not in writing, nor was any note or memorandum thereof subscribed by the defendant or by his authorized agent. The reply controverted the allegations of new matter in the answer, whereupon the cause was tried resulting in a judgment for the defendant, and plaintiff appeals.

Frank Holmes, of McMinnville (Holmes & Pearce, of McMinnville, on the brief), for appellant. W. T. Vinton and J. E. Burdett both of McMinnville (McCain, Vinton & Burdett, of McMinnville, on the brief), for respondent.

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

Exceptions having been taken to parts of the court's charge, it is maintained that errors were committed in instructing the jury as follows:

"(1) If you believe that whatever contract, if any, the plaintiff had, had to do with the sale of real property in addition to the sale of personal property, then your verdict should be for the defendant, for the reason that a contract a broker's contract, for the sale of real property, must be reduced to writing, must express a consideration, must be subscribed by the party to be charged. So the question in this case is largely, what was the contract? * * *

"(2) There must, in order to make a contract, be, among other

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