Devereaux v. Cockerline

AFFIRMED. This is an appeal by the plaintiff from an adverse decree in a suit for an accounting and other relief. The controversy arises out of a contract alleged to have been entered into in the year 1924 by the plaintiff with A.T. Cockerline and Mary E. Cockerline, his wife, both now deceased, who were the parents of the defendants. The alleged contract relates to an investment in timber land in Linn County, the Cockerlines providing the purchase price of the land and the plaintiff contributing certain services. Plaintiff at the time was a licensed real estate broker, but ceased to be such after the year 1924. He claims, however, that under the arrangement with the Cockerlines he did not act in the capacity of a broker, but as a partner. The validity of that claim is the controlling question in the case. The agreement sued upon is in writing and reads: "AGREEMENT "THIS AGREEMENT, ENTERED INTO IN DUPLICATE, this 4th day of August, 1924, by and between A.T. Cockerline and Mary E. Cockerline, First Parties, and C.P. Devereaux, second party; "WITNESSETH: That for and in consideration of the sum of ONE DOLLAR, and other valuable considerations, the parties of the first part hereby appoints the party of the second part his general timber broker, to buy and sell for him on his behalf, timber and timber lands in general, and *Page 232 to specify tracts as may be set out herein by consent of the parties, and may be inserted and may be as follows, to-wit: "The Northeast quarter of Section TWENTY TWO, in Township Fourteen South of Range ONE East, Willamette Meridian, Linn County, Oregon. Containing 160 acres more or less. "IT IS UNDERSTOOD AND AGREED, by and between the parties hereto that said timber lands are bought for investment purposes and held for the profit, and the party of the first part hereby agrees to furnish all necessary funds to purchase such timber and timber lands. Such first party also agrees to pay to second party, his heirs and assigns, as a commission for his services and experience in being able to locate profitable investments, one half of the net profits realized upon buying said timber and timber lands, and said party of the first part shall receive, over and above the original investment, one half of the net profits. Said net profits on each sale shall be determined as follows, to-wit: "After deducting from the gross proceeds of each sale the original investment, (the original investment on the above described lands being $2,036.86, which includes full payment of 1923 tax) together with eight per cent per annum on said original investment, from the time said investment is made until said sale shall have been made, and the remaining amount shall be the net proceeds of said sale. "IT IS FURTHER UNDERSTOOD AND AGREED, by and between parties hereto, that the first parties shall pay all taxes that may accrue against said timber and timber lands from the time they are purchased until they are disposed of. Said taxes shall be a part of the original investment, and the party of the second part shall pay all expenses incidental and necessary in the selling and disposing of said timber lands, except however if it *Page 233 shall be necessary to pay a commission to other parties for the sale of said timber, that the commission shall be deducted from the net profits before said profits are divided between first and second parties hereto. "The said second party shall use his best efforts to make and procure a profitable sale of each and every tract of timber and timber lands bought and sold. "IN WITNESS WHEREOF, We have hereunto set our hands and seals to this and other instruments of the same date and tenor on the day and date first above written. "A.T. COCKERLINE (SEAL) C.P. DEVEREAUX (SEAL) (SEAL) "IN THE PRESENCE OF A.E. WHEELER "State of Oregon, County of Lane, "On this the 4th day of August, 1924, personally came before me a Notary Public, in and for said County and State, the within named A.T. Cockerline and Mary E. Cockerline and C.P. Devereaux, to me personally known to be the identical persons described in and who executed the foregoing instrument, freely and voluntarily for the uses and purposes herein named. Witness my hand and Notarial Seal, this 18th day of August, 1924. "W.E. WHEELER NOTARY PUBLIC FOR OREGON "My Notarial Commission expires May 27, 1927. "(NOTARIAL SEAL)" The agreement was signed by the plaintiff and Mr. Cockerline, but not by Mrs. Cockerline. The amended complaint upon which the case was tried, after setting forth a number of timber transactions *Page 234 between plaintiff and the Cockerlines prior to the one in suit, alleged "that thereafter and pursuant to an agreement hereinafter set forth, and the performance thereof, the plaintiff located and recommended to the Cockerlines for purchase, the following described timber land (the description is the same as in the contract). And that pursuant to said agreement the said Cockerlines provided the purchase price thereof in the amount of $2,036.86 and the land was conveyed pursuant to said agreement from Ida E. Willcutt to the said A.T. Cockerline and Mary E. Cockerline on the 29th day of July, 1924 * * *". It is next alleged: "That thereafter said Cockerlines and the said plaintiff made a written memorandum of the said partnership agreement, which is in words and figures as follows (a copy of the agreement is then set forth)." It is further alleged: "That thereafter and during the lifetime of each of the said Cockerlines, each thereof and the plaintiff herein acknowledged said agreement and kept the same in full force and effect and that the defendant herein had full knowledge of said agreement and recognized the same." It is alleged that A.T. Cockerline died testate on the 25th day of November, 1932, and left surviving him as his heirs at law his widow, Mary E. Cockerline, and three children, the defendants Harold B. Cockerlin, Kenneth W. Cockerline and Winifred M. Barker, and that he willed and bequeathed all his property to his widow, and his estate was closed on July 15, 1933; that Mary E. Cockerline died testate July 13, 1939; that the defendants were her sole heirs at law; and that she *Page 235 devised and bequeathed all her estate to the defendants, share and share alike, and her estate was closed on May 1, 1940; that the timber land involved was not sold during the lifetime of either of the Cockerlines; that it came into the possession of the defendants after the death of Mrs. Cockerline and was sold by them on January 17, 1940, to Santiam Logging Company for a consideration in excess of $16,000.00; and that plaintiff made demand upon the defendants for an accounting of the profits derived from such sale, but that they have not complied with such demand. The prayer demands an accounting of such profits and "a judgment and a decree against the defendants in such proportion as each defendant has received the said funds from the sale of said land and from said estate for the amount determined in said accounting, together with interest, etc." The defendants, in separate but identical answers, admitted the execution by A.T. Cockerline, but not by Mrs. Cockerline, of the agreement sued on, and the sale of the timber land sometime between January and March of 1940, and alleged affirmatively that the plaintiff's claim was barred because the estates of A.T. Cockerline and Mary E. Cockerline had been duly closed; that the contract was abandoned by the plaintiff; that the agreement of A.T. Cockerline to pay a commission to the plaintiff did not survive his death; and that the alleged agreement of Mary E. Cockerline is not in writing and subscribed by her, and therefore is void under Subd. 8 of § 2-909, O.C.L.A.