Watson v. Brooks

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Citation: 13 F. 540
• Decision Date: 27 September 1882
• Parties: WATSON and another v. BROOKS and another.

13 F. 540

WATSON and another
v.
BROOKS and another.

United States Circuit Court, D. Oregon.

September 27, 1882

William H. Effinger, for plaintiff.

H. Y. Thompson, for defendant Brooks.

Seneca Smith, for defendant Dekum.

DEADY, D.J.

The plaintiffs, William P. and Matthew P. Watson, citizens of Washington territory, bring this action against the defendants, S. L. Brooks and Phoebe Dekum, of Oregon, to recover the sum of $2,500, upon the following allegations of fact:

That during the year 1881 the defendants owned a certain property at the Dalles, Oregon, 'known as the Dalles Water Company,' and engaged the plaintiff, as their agents, to sell the same, within a certain number of days thereafter, [13 F. 541] for the sum of $50,000, and authorized them to represent that they would, 'upon a sale being effected, make to the purchaser a good and sufficient conveyance' of the property, 'with covenants of general warranty,' for which service the plaintiffs to receive a commission of $2,500, 'or all in excess of $47,500 for which they should sell the property;' that, on the last day of the time allowed, the plaintiffs secured a purchaser for the property who was able to pay the sum of $50,000 therefor, and offered to do so upon receiving a conveyance thereof, 'provided the defendants would allow him, by his solicitor, to search the title to the same, so that he might be advised as to whether they could convey a perfect title thereto, but that the defendants refused to permit said search or to give time therefor, and thereby refused to complete the sale of said property,' and 'capriciously and without justifying cause obstructed and prevented a consummation of said sale.'

The defendants demur to the complaint, for that (1) the court had not jurisdiction of the parties defendant nor the subject-matter; and (2) the facts stated do not constitute a cause of action.

The case was argued upon both points of the demurrer, and the parties desire that both should be considered by the court.

Upon the second cause of demurrer the defendants claim that the plaintiffs agreed to make a sale of the property, which was not done by simply finding a person who was willing and able to purchase the same in case the title, upon examination, proved good.

A sale of real property is an agreement by the vendor to convey the title thereto or an estate therein to the vendee for a certain valuable consideration then or thereafter to be paid.

The conveyance is not a part of the sale, but only a consequence of it; and the former is complete without the latter, even if it is not followed by it. The legal title remains in the vendor, notwithstanding the sale, until a conveyance is made to the vendee. Bouvier, 'Sale,' sub. 19.

The plaintiffs undertook to make a sale of this property for a certain price within a certain time, and upon a representation authorized by the defendants to the effect that the title was good. To do this, it was necessary to find some one who was not only able and willing to purchase upon the terms proposed and within the time limited, but who should also agree to do so. And this agreement, to be valid and...