Richanbach v. Ruby

*120 KELLY, J. The appellant insists that the lower court erred in giving that part of the instruction which states, in effect, that plaintiff does not contend that the letter in question constituted his employment, but claims that the contract was verbal, which claim defendant denies. The giving of this instruction did not constitute error. It was applicable to the testimony, given by the plaintiff and the defendant. It is the duty of the presiding judge to instruct the jury with respect to the theories of the parties defined by the pleadings and supported by substantial evidence: Schrunk v. Hawkins, 133 Or. 160 (289 P. 1073). The case being based upon a cause of action in quantum meruit, it is claimed by defendant and appellant that the court committed error in admitting evidence of an express agreement to pay a definite commission. This is not tenable. No error was committed by the court in that regard: Sinnock v. Zimmerman, 132 Or. 137 (284 P. 838); Inland Construction Co. v. City of Pendleton, 116 Or. 668 (242 P. 842). The failure of the court to give the requested instruction of defendant, referring to the alleged legal effect of the return of the $1,000 earnest money deposited by Mr. Richanbach, is also urged as ground for reversal. In the absence of a provision in the contract with the broker constituting the earnest money, or part of it, a fund from which the broker’s commission is to be paid, the return of earnest money in itself does not relieve a party of his liability to a broker for commis *121 sions upon a sale which was not consummated because of the default of such party: Peavy v. Greer, 108 Minn. 212 (121 N. W. 875); Phelps v. Prusch, 83 Cal. 626 (23 P. 1111); O’Neil v. Printz, 115 Mo. App. 215, 219 (91 S. W. 174). The requested instruction fails to take account of the effect of the alleged default of the defendant. If defendant were unable to perform his part of the contract, before a finding that Taylor had abandoned such contract and that plaintiff had consented thereto would be justified, because of the acceptance of the return of the earnest money by Taylor, it would be necessary for the testimony to disclose that it was not on account of defendant’s inability to perform that such earnest money was returned and accepted. It is true that, even though the consummation of the sale negotiated by the plaintiff was prevented by reason of defendant’s default, nevertheless, plaintiff could have waived his right to commission. To warrant a finding that plaintiff waived his right to commissions, however, it would be necessary for the testimony to disclose an intention on the part of plaintiff to forego his claim to commissions; and representations or conduct, or both, manifesting that intention to defendant. The requested instruction omits reference to the possible effect of the alleged default on defendant’s part, which it is claimed by plaintiff prevented the consummation of the sale, and also fails to state the law of waiver just outlined. Finding no error, the case is affirmed. Rossman, J., did not participate. Coshow, C. J., Rand and Belt, JJ., concur.