Kyle v. Rippey

Strahan, C. J. — This is a second appeal. The result of the former appeal is reported in 19 Or. 186. The only question presented by this record is whether or not the court drew the correct conclusion of law from the facts found. The plaintiff was a real estate broker and was employed by the defendants to negotiate a sale of certain real estate in Jackson county, for which service he was to receive an agreed sum of §250. The plaintiff produced a purchaser, ready, able and willing to purchase the property on the terms prescribed by the defendants, and the defendants received on said contract $500, and were to furnish an abstract and make deed, etc. When the abstract was furnished it was submitted by Kane, the proposed purchaser, to his attorney for 1ns advice, who advised him that such abstract did not show a clear title in the defendants, and for that reason alone he declined to complete the purchase after having paid $500 thereon. In construing the language of the contract between the plaintiff and defendants, its objects and purposes must not be overlooked. The plaintiff had no power by virtue of that contract to complete a sale. All he could do was to find a purchaser ready, able and willing to buy the property on the terms offered by the defendants. When he had done this he had performed his contract and was entitled to the compensation agreed upon. (16 Cent. K. J. 442; 22 Cent. L. J. 126; 26Am.L.Reg.N.S.109; 10 Am. L.Eeg.N.S. 637; IWarvelleon Wend. 237; Lockwood v. Rose, 125 Ind. 588, 25 N. E. Rep. 710; Phelps v. Prusch, 83 Cal. 626; Heinrich v. Korn, 4 Daly, 74; Rutenberg v. Main, 47 Cal. 213; Cassady v. Seely, 69 Iowa, 509, 29 N. W. Rep. 432; Phelan v. Gardner, 43 Cal, 306; Reed's Exrs. v. Reed, 82 Pa. St. 420; Duclos v. Cunningham, 102 N. Y. 678; Reynolds v. Tompkins, 23 W. Va. 229; Conklin v. Krakauer, 70 Tex. 735, 11 S. W. Rep. 117; Tombs v. Alexander, 101 Mass. 255, 3 Am. Rep. 349; Tyler v. Parr, 52 Mo. 249; Carpenter v. Rynders, 52 Mo. 278; Fax v. Rouse, 47 Mich. [454] 558; Doty v. Miller, 43 Barb. 529; Koch v. Emmerling, 22 How. 69; McGavock v. Woodlief, 20 How. 221; Bell v. Kaiser, 50 Mo. 150; Hart v. Hoffman, 44 How. Pr. 168; Barnard v. Monnot, 3 Keyes, 203. These authorities and numerous others that might be cited conclusively establish the proposition contended for by the appellant; but it was claimed on behalf of the respondent that because the proposed purchaser did not sign the contract set out in the findings the plaintiff was not entitled to his commissions. It does not appear through whose oversight that omission occurred, nor is it material. The plaintiff brought the defendants a purchaser and they undertook to enter into a contract in writing with him and received $500 thereon. If the omission occurred by the plaintiff’s fault, the defendants waived their right of objection by accepting and retaining the $500 paid under the contract; — if through their own fault, they cannot complain. (Winperny v. French, 18 Ohio St. 469.) This is upon the well-settled rule that a principal cannot accept that portion of his agent’s work that is to his advantage and repudiate the residue. He must accept it in its entirety or not at all. It is evident from the findings that the abstract furnished by the defendants upon its face showed some defect in the defendants’ title. Whether it was a real defect or one that was only apparent is not shown by the findings. If it was a real defect and the sale failed for that reason, the plaintiff would be entitled to his commission. He was not responsible for the condition of the defendants’ title. If the defendants offered for sale a piece of land the title to which was not marketable it was not the plaintiff’s fault. In the ordinary course of business, the title would probably not be examined until a purchaser was found, and it was the defendants’ fault not to know the state of their title before they put it upon the market. On the other hand, if the defect shown by the abstract was only apparent, — some cloud that could have been readily removed, — it was the defendants’ duty to have caused its removal at once, so that the [455] sale should not have failed for that reason. Without further examination of the subject, we are satisfied that the learned circuit judge erred in his findings of law, and that the same should have been that the plaintiff was entitled to recover against the defendants the amount sued for. The judgment must, therefore, be reversed and the cause remanded to the court below with directions to find the law in accordance with this opinion and to render judgment thereon for the plaintiff.