Crouch v. Forbes

Morris, J. Appellants sought in this action to recover $3,000, as commission upon a sale of real estate in which [565] they claim to have acted as brokers, and appeal from an adverse judgment. The record shows that, on September 3, 1909, they went to the home of respondent, and after some preliminary conversation, drew up the following: “Olympia, September 3, 1909. “This is to certify that I, Cornelia A. Forbes of Mason county, Wash., the owner of the following described property, to wit: (describing the property) and that for the consideration of $1, receipt of which is hereby acknowledged, I give J. G. Crouch, of Olympia, Washington, the exclusive right to sell or purchase said property on or before April 1st, 1910. Price $12,000 net. Terms: Half cash, balance in one to five years at 7 per cent per annum, or all cash at the option of the purchaser. If the above described property is bought or sold by said J. G. Crouch & John C. Ellis, he is to have no per cent commission and all realized over and above the sum of $12,000. And I agree and bind my heirs to execute and deliver good and sufficient conveyance of said property to the purchaser, according to the terms of such sale, and to furnish abstract showing perfect title.” This writing was satisfactory to respondent, according to the testimony of appellants, but she refused to sign it for the reason that she had previously listed the property with another real estate agent, whose time would not expire until September 8, at which time, if not then sold, she promised to sign it and return it to appellants. On September 8 respondent wrote the following letter to appellants: “Mr. J. G. Crouch, Kamilchie, Sept. 8, 1909. “Olympia, Wash. “Dear Sir: — The Elma real estate man’s time has expired now, and if you have your man in view, bring him down. There are some parts in the contract you left which I do not like after carefully looking it over. But that can be satisfactory after a talk with you, no doubt. If you sell the farm I want $12,000, twelve thousand (net). You may keep this letter as a contract until you come down. “Cornelia A. Forbes.” [566] Appellants testify that, on receipt of this letter, they procured a purchaser for the farm, who subsequently purchased the same, paying $15,000. The question to be determined is, does the contract, in so far as it constitutes an agreement to pay a commission, fall within the statute of frauds. We are of the opinion that it does. Section 5289, Rem. & Bal. Code, provides that any contract or promise shall be void unless a memorandum thereof be made in writing and signed by the party to be charged, in the following cases : “(5) An agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission.” Assuming that respondent fully agreed to all that is set forth in the writing of September 3, she did not sign the writing evidencing the agreement, and it must rest in parol. The letter of September 8 is of itself insufficient to take the case out of the statute, as it does not contain a sufficient memorandum to indicate what the contract was; and if we take the first agreement to supply what is lacking in the letter, we have a contract partly written and partly oral, which is a parol contract. The statute requiring the contract to be in writing, in so far as it relates to the promise to pay a commission, and no such promise being found in the writing, we must look to the oral agreement to supply it, and that we may not do. Counsel for appellants contend that the two writings should be read together as one, and thus reading them they constitute a contract in writing. That this is d proper rule ofttimes applied by the courts to take a case from out the statute of frauds is undoubted, but such rule is applied to situations where in the letter or other writing the oral agreement is acknowledged and either accepted or rejected, and the party submits to its terms or, confessing them, seeks to avoid them. The letter of September 8, however, neither accepts nor rejects the writing of September 3. Respondent does not submit herself to its terms, nor does she reject them. She says, by implication, that she is now ready to con [567] tract. She does not like some parts of the contract submitted, but expresses her belief that a satisfactory agreement can be reached. The letter is silent as to what part of the agreement she accepts, or what part she rejects. The two taken together cannot, therefore, constitute a contract containing the terms agreed upon. If she had said in her letter: “I accept the contract as left by you,” or: “I refuse to be bound by the terms agreed upon,” the terms of the contract being undisputed, there would only remain the question whether the signing of the letter referring to it would be sufficient to avoid the statute, as in the cases relied upon by appellants. But there is fio reference to any contract entered into. Respondent only expresses her willingness to enter into a contract, now that she is free to do so by reason of the expiration of the time given another agent. She refuses the proffered contract as unsatisfactory, and expresses her willingness to make a satisfactory arrangement, and fixes her price at $12,000 net. Referring to the testimony of appellants, we find respondent, on September 3, refusing to make any contract for the sale of her farm until September 8, when it could be determined whether or not the Elma agent had effected a sale. So that, in any event, we cannot find an agreement even in parol to sell upon the terms offered in the writing of September 3. Neither is the clause in the letter of September 8: “If you sell the farm, I want $12,000 net,” a promise to pay appellants all received over that sum as a commission. “$12,000 net” might mean the purchaser was to pay all costs and charges attending the sale, such as the cost of a proper conveyance or of mortgage securing any unpaid portion of the purchase price, or the cost of abstract, or the assumption of any liens or incumbrance then on the property. Finding, then, no promise in writing to pay any commission, we must sustain the judgment. These views are in harmony with those expressed in Keith v. Smith, 46 Wash. 131, 89 Pac. 473, wherein it is said, [568] quoting from Zimmerman v. Zehendner, 164 Ind, 466, 73 N. E. 920: “The statute requires that the contract for the payment of a commission for the sale of real estate be in writing, and a written memorandum or acknowledgment of an oral contract will not fulfill the requirements of the law. . . . The important feature — the amount of commission to be paid— is to be ascertained by parol testimony . . . the exact thing which the statute was designed to prevent.” Forland v. Boyum, 53 Wash. 421, 102 Pac. 34, asserts the same rule. For these reasons, the judgment is affirmed. Chadwick, Ellis, Gose, Mount, Parker, and Crow, JJ., concur.