Webb v. Wolfard

• Decision Date: 24 May 1910
• Citation: 108 P. 1005,56 Or. 394
• Parties: WEBB v. WOLFARD.
• Court: Oregon Supreme Court

108 P. 1005

56 Or. 394

WEBB v. WOLFARD.

Supreme Court of Oregon

May 24, 1910

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Action by G.A. Webb against J.M. Wolfard. Judgment for plaintiff and defendant appeals. Affirmed.

Plaintiff seeks by this action to recover $300 as the agreed commission for securing a purchaser of a tract of land in which the defendant was interested. The complaint avers that for a period of more than 20 years prior to the commencement of the action plaintiff had been engaged in the business of real estate brokerage in the city of Silverton, in the vicinity of which the land sold is situate, that about May 15, 1908, the contract of employment was made, and that on September 10th following he procured and brought to the defendant as a purchaser one J.F. Short, who was ready, able, and willing to buy, and did buy, the land upon the terms stated by defendant at the time of plaintiff's employment. The answer admits that plaintiff was a real estate broker during the time stated in the complaint, but denies all other allegations. At the close of plaintiff's case, defendant moved for a judgment of nonsuit, which the court denied. A verdict was thereafter returned in plaintiff's favor for the amount demanded, and, from the judgment entered thereon, defendant has appealed.

Geo. G Bingham (L.J. Adams, on the brief), for appellant.

Louis E. Rauch (Rauch & Seitz, on the brief), for respondent.

SLATER, J. (after stating the facts as above).

Defendant's motion for a judgment of nonsuit against plaintiff is based principally upon the ground that there is no evidence tending to establish an agreement as to the amount of the commission which plaintiff was to receive. The evidence is brief, and directed mainly to the establishment of two principal points at issue--the employment of plaintiff, and the agreement as to the amount of commission to be paid. As to the first point, there is no room to question the sufficiency of the evidence to make a prima facie case, for plaintiff testifies unequivocally that about May 11, 1906 defendant told him to secure a purchaser for the land comprising 315.64 acres, at $27 per acre, but that nothing was said by either of them at that time regarding the amount to be paid as commission. Under such circumstances, the law implies a promise on the part of defendant to pay the usual or customary commission charged in that neighorhood for like services, if it were shown there was such a customary rate or, if not, then the reasonable value of the services rendered would be the measure of defendant's liability.

One Andrew Aarhaus, an employé of plaintiff, testified that in June, 1908, the defendant called at plaintiff's office to ascertain what certain parties whom witness had taken to see the land were going to do. Plaintiff, being ill, was at his home. Defendant then told witness to find out what the commission would be. Witness telephoned defendant's inquiry to plaintiff, receiving an answer that it would be $300, which witness communicated to defendant. The testimony then takes this form: "Q. What did Mr. Wolfard say? A. He said, as far as I can remember, that $150 was enough. Q. Did he say he wouldn't pay $300? A. Not that I know of." This is all of the conversation there was about the amount of the commission, but the evidence further shows that after this occurrence defendant called at least once at plaintiff's office to ascertain what the parties seeking to buy land thought of the place, and particularly regarding one Brown, who had been shown the property by witness Aarhaus. The parties referred to by witness as having been taken out to and shown the place did not include J.F. Short, who was afterwards obtained as a purchaser. Plaintiff also testifies that after bringing the place to Short's attention, some time in the month of September, defendant inquired of plaintiff where Short was and, being told that he was in Woodburn, defendant said to plaintiff: "Webb, I want you to use your influence the best you can to have Short buy that place." To which plaintiff testifies that he replied: "I have done that. The place is a good place, and I know that Short will buy it." Does this evidence tend to support the averment that defendant had agreed to pay plaintiff the sum of $300 as a commission? It is clear that he did not expressly do so, but that he impliedly assented thereto by seeking and accepting plaintiff's services after having been informed of the price seems to us to be clear. While plaintiff was seeking a buyer, and before any agreement as to the compensation was made, defendant by his inquiry manifested a desire to have some amount agreed upon. When informed by plaintiff the amount that would be charged for his services, if the sum was not satisfactory to the defendant, the latter was at liberty to reject the proposal, for it must be considered to be such, and to terminate his contractual relations theretofore existing. Plaintiff was not bound to proceed in any event, but might have ceased his efforts had defendant notified him that he would not pay the...