Good v. Smith

¶1after stating the facts in the foregoing terms, delivered the opinion of the court.

¶2There was evidence tending to show about this state of facts : In February, 1902, the plaintiff, who is a real estate *581broker in Portland, had a customer in the Western Lumber Company for some water-front property. He called at the office of the defendant to ascertain the selling price of the property mentioned in the complaint, supposing at that time that he was the owner thereof. After some negotiations, defendant, without disclosing the fact that he was not the sole owner, agreed to sell the entire property, personal and real, for $65,000, and to pay plaintiff a commission of two and one-half per cent if the sale was effected. The plaintiff advised Mr. Ayer, the president of the lumber company, of the price at which the property could be secured; and he agreed to take it for his company, if it could be conveyed free from incumbrances, and with the right to immediate possession. About that time, however, the plaintiff learned that the defendant did not own the whole of the property, but that Walter V. Smith and the Security Savings & Trust Company each owned or had a deed for an undivided one-fourth of a certain portion of it. He thereupon entered into negotiations with Smith and the trust company, which resulted in an agreement by them to sell their interests for $8,500 each. He again called upon the defendant, and told him that the interests of the other owners of the property could not be purchased for less than $17,000, and, as the prospective buyer would not pay to exceed $65,000 for the entire property, the sale must fall through, unless he would take $-18,000 for his interest. After talking the matter over at some length, the defendant finally agreed to take $48,000 for his interest in the property, to pay the plaintiff two and one-half per cent commission, and to furnish an abstract; it being understood at the time that the prospective purchaser would not take the property unless he could acquire the entire title. The plaintiff asked for a written option from the defendant, but he refused to give it, saying his word was as good as his bond. The plaintiff then wrote a memoran*582dum of the agreement or understanding had at the time, and read it over to the defendant, who said it was correct. This memorandum is as follows :

¶3“Portland, Oregon, 14 February, 1902.

¶4I will sell for $48,000 (forty-eight thousand dollars) my interest to the mill property and plant, and personal property, and land marked on the Lewis & Dryden atlas as belonging to the Multnomah Box Factory and Smith Bros., about 12 acres more or less, including water front, etc., and pay you a commission of two and one-half per cent for effecting sale, and I will furnish abstract of title and give title free of all incumbrances.”

¶5The result of these negotiations was reported to the prospective buyer, who agreed to take the property, and the defendant was requested by the plaintiff to furnish the abstract thereof, which he did. Upon an examination of the abstract, it was learned that, although the trust company had a deed for an undivided one-fourth interest in a part of the property, it was in fact a mortgage, and the title was in the heirs of Preston G. Smith, deceased, and therefore proceedings would have to be taken in the probate court to acquire such interest before the sale could be made. These facts were reported to Mr. Ayer, and also to Walter V. Smith and the trust company; and they all agreed to wait until a sale of the interest of the heirs of Preston C. Smith could be thus effected, or until it could be ascertained whether a title which could be conveyed to the purchaser could be secured through such proceedings.

¶6About the 1st of March a petition for an order of sale was filed in the probate court, and such proceedings were thereafter had that on April 24th a sale was effected to the trust company, and it was confirmed on the 3d of June. Before or about the time the proceedings were instituted, the defendant was informed by the plaintiff of the condition of the title, and that the sale could not-be concluded until the title was cleared up through the probate court; *583and, while there is no evidence that he expressly agreed to wait until that time, the evidence shows that he made no objection to the delay, and did not withdraw or attempt to withdraw his property from sale by the plaintiff. Pending the proceedings in the probate court it was also learned that Susie W. Smith and Albert T. Smith were each the owners of an undivided one-fourth interest, of the value of $400 each, in certain pipes in a dryhouse on the property ; and, as defendant refused to take care of such interest, it was arranged that the trust company should purchase the interest of Susie W. Smith, and that the plaintiff would take up the interest of Albert T. Smith out of his commission on the sale. This arrangement was entirely satisfactory to the purchaser. After the confirmation of the sale of the interest of the Preston G. Smith heirs by the county court, and after arrangements satisfactory to the buyer for the conveyance to it of the title of the purchasers and of the other parties, the prospective buyer, through its attorney, notified the defendant that it was ready and willing to take the property, and had the money on hand with which to pay for the same ; but the defendant in the meantime had leased his interest therein for two years, and could and would not comply with his agreement, and convey the property free from incumbrances, and subject to immediate possession by the purchaser.

¶71. The evidence of the conversations and agreement between the plaintiff and the prospective purchaser and between the plaintiff and the other owners of the property was admitted over defendant’s objection on the ground that it was hearsay. This evidence was offered and admitted, however, not as binding on the defendant, but to show that the plaintiff had complied with his contract, and produced a purchaser readj7 and willing to take the property upon the terms proposed by the defendant, and for this purpose it was competent: Leonard v. Roberts, *58420 Colo. 88 (36 Pac. 880); Brumfield v. Potter & S. Mfg. Co. 23 N. Y. Supp. 1025 (4 Misc. Rep. 194).

¶82. After the evidence for the plaintiff was all in, and it appeared that Albert T. Smith had or claimed some interest in a portion of the personal property described in the complaint, the plaintiff was permitted to amend his complaint to show that fact. This amendment did not change the cause of action set out in the complaint, and its allowance was within the discretion of the court: B. & C. Comp. § 102, and authorities noted. The cause of action sued on was the alleged breach of the agreement between the defendant and the plaintiff, by which the defendant agreed to pay the plaintiff a commission of two and one-half per cent if he could effect the sale of his interest in the property for the sum of $48,000. The title to the property was not in dispute, nor made an issue by the pleadings.

¶93. It is insisted that there was an entire failure of proof of the contract alleged in the complaint, and in support of this position it is argued that the memorandum made by the plaintiff on February 14, 1902, must be considered as containing all the terms of the contract. This memorandum, as we understand the evidence, was not intended by either of the parties to contain the terms of the contract. The defendant expressly refused to give a written option on the property, or to make any contract in writing concerning the same. The agreement between him and the plaintiff rests entirely in parol, and is to be deduced not only from what took place the 14th of February, but from the conversations and negotiations between the parties previous and subsequent to that date. The contract was not made at any particular time, but was the result of repeated interviews and negotiations. The writing made by the plaintiff on the 14th of February ivas intended for his own convenience, as a memorandum of what then occurred. It does not contain the names of parties to a contract, and *585is in no sense an agreement. At that time both parties supposed that the trust company had a title which it could convey, and, when it was subsequently ascertained that this was a mistake, arrangements were made, as the evidence tends to show, to meet the contingency, and they became a part of the contract, and were properly pleaded as such.

¶104. Again, it is argued that after ascertaining the condition of the title, and the necessity of instituting proceedings in the probate court for a sale of the interest of the heirs of Preston C. Smith, the plaintiff entered into a new agreement with the prospective buyer and with some of the other owners of the property concerning the sale and purchase, without informing the defendant; but, if so, it was immaterial to him. His contract or agreement was for the sale of his interest for a certain sum, and it was immaterial what arrangements or agreements were made between the plaintiff and the purchaser or the other owners of the property. If the plaintiff, -while the contract between him and the defendant was- in force, produced a purchaser ready, able, and willing to take defendant’s interest at the price agreed upon, he thereby earned his commission, whether the sale was consummated or not: Kyle v. Rippey, 20 Or. 447 (26 Pac. 308).

¶115. It is also argued that there never was any employment of plaintiff by defendant to sell his property, but, if so, it was terminated by mutual consent, or, if not terminated, the plaintiff did not prove the performance. These matters, if within the issues, were questions of fact; and, as there was some evidence to sustain the findings of the trial court, such findings cannot he reviewed by us. Where a cause is tried before a court without the intervention of a jury, the findings of fact stand as the verdict of a jury, and- cannot be disturbed on appeal, unless it appears that the evidence upon which they were made was not sufficient, *586as a matter of law, to support them: Hicklin v. McClear, 18 Or. 126 (22 Pac. 1057); Bartel v. Mathias, 19 Or. 482 (24 Pac. 918); Fenstermacher v. State, 19 Or. 504 (25 Pac. 142); Astoria Railroad Co. v. Kern, 44 Or. 538 (76 Pac. 14). The judgment of the court below will be affirmed.

¶12Affirmed.