Ward Cook, Inc. v. B-OK, Inc.

• Decision Date: 02 February 1972
• Docket Number: INC,B-O
• Parties: WARD COOK, INC., an Oregon corporation, Respondent, v., a Washington corporation, Appellant.
• Court: Oregon Supreme Court

Page 136

493 P.2d 136

261 Or. 227

WARD COOK, INC., an Oregon corporation, Respondent, v. B-OK, INC., a Washington corporation, Appellant.

Supreme Court of Oregon.

Argued and Submitted Dec. 6, 1971.

Decided Feb. 2, 1972.

William E. Hurley, Portland, argued the cause for appellant. With him on the briefs were Bernard, Hurley, Hodges & Kneeland, Portland.

Michael J. Walsh, Portland, argued the cause for respondent. With him on the brief were Shuler, Rankin, Myers, Walsh & Ragen, and Gile R. Downes, Portland.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

DENECKE, Justice.

The trial court, sitting without a jury, entered a judgment for the plaintiff for its claimed real estate sales commission. The defendant seller of the property appeals. The defendant contends that the plaintiff is not entitled to a commission because it did not fully perform its obligations as a broker.

The defendant signed a listing agreement authorizing the plaintiff to sell the defendant's one-half interest in a parcel of commercial property. Plaintiff procured a prospective purchaser who signed several earnest money receipts containing offers to buy. Defendant contends that none of the offers complied with the terms specified by the defendant in the listing agreement. Immediately after rejecting the final offer procured by the plaintiff, the defendant sold to a third party.

The trial court found that the plaintiff had performed all the conditions precedent to earning its fee.

The final earnest money receipt stated that the seller was to make sidewalk repairs which had been demanded by the city. The repairs amounted to $400. This obligation to repair was not assumed by the seller in the listing agreement. The trial court found, however, that the defendant's attorney orally agreed with the plaintiff and the prospective purchaser, the offeror, that the defendant would make those repairs. There was evidence that the defendant's attorney was authorized by the defendant to make such an agreement.

Defendant contends that even if the defendant's agent did make such an oral agreement, such agreement was void because of the Statute of Frauds. ORS 41.580(7) provides:

'In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is 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:

'* * *.

'(7) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the party to be charged, or by his lawfully authorized agent, and contains a description of the property sufficient for identification, and authorizes or employs the agent or broker to sell the property, and expresses with reasonable certainty the amount of the commission or compensation to be paid, the agreement shall not be void for failure to state a consideration.'

This statute only requires that the writing contain a description of the property, an authorization to sell and the amount of the commission. It does not require that a term, such as the seller agreeing to repair the sidewalk, be in writing. See cases cited in note 2, Norris, B & S v. Eastgate Theatres, 93 Adv.Sh. 1506, 1511--1512, Or., 491 P.2d 1018 (1971).

The defendant contends the plaintiff did not perform because the offer of the prospective purchaser included the purchase of trade fixtures and plaintiff knew the defendant and its tenant had an agreement that the tenant could retain the trade fixtures.

The listing agreement provided that no personal property was to be included in the sale. A printed portion of the earnest money receipt included in the sale those...