Henry v. Harker

Mr. Justice Burnett delivered the opinion of the court. 1. As a preliminary matter it is our judgment that the court erred in allowing the plaintiff to testify and in finding as a fact the construction the plaintiff put upon the defendant’s letter of November 8, 1906. Under the authority of Mahon v. Rankin, 54 Or. 328 (102 Pac. 608: 103 Pac. 53), a party or witness may state his own intent, where the same is material, in doing an act or making a declaration, but he cannot testify as to the intent of another or construe the legal effect of the other’s writing. The intent of the latter is a question for the jury or other trier of the facts, and the legal effect of the writing is for the court" to determine. The contract in form as alleged in the complaint has been denied by the answer, and it is incumbent upon [284] us to determine whether the letters quoted in the findings prove or constitute such a contract. In the first letter the plaintiff states that he has some prospective customers for First street property, and inquires whether the defendant will sell, and, if so, upon what terms. The latter might well construe this language as the negotiation of a purchaser’s broker, and treat the plaintiff as the agent of some undisclosed buyer. It is the plain import of plaintiff’s language in the opening paragraph of the communication. It is true that the plaintiff states further, to the defendant that, “if you desire to place this property in my hands for sale on the usual commission basis, I will give it my immediate and prompt attention.” The defendant answered this letter, giving his terms as $40,000 cash, which would be an apt and sufficient response to the purchaser’s broker. To the suggestion about putting the property into the plaintiff hands for sale on the usual commission, the defendant answered, in effect, that they were not putting the property on the market. This would certainly seem to imply that he declined the offer of plaintiff to take the property for sale. Indeed, the plaintiff himself does not count upon this as a contract of employment, for he alleges in his complaint that the agreement was made in the month of November, 1906. That the plaintiff considered the terms of the proposed transaction still open is shown by his letter of October 18, 1906, in which he asks the defendant to state his lowest price and terms, allowing the usual commission in the event of making the sale. The negotiations between the plaintiff and the defendant being thus open, the defendant had a right to decline to sell for $40,000, and stated in his letter of October 30th: “I consider the property a good investment at $45,000.00, and would not sell below that figure.” By a fair construction such language does not amount to fixing a price [285] at which he would sell the property, but only as establishing a minimum below which he would not sell. Bearing in mind the allegations of the complaint that the contract was made in November, so far as offer and acceptance are concerned, the pleaded offer, which he claims was accepted, must be found in his letter of November 5, 1906, in the following language: “Will you kindly give me a short time, say thirty days, in which to effect the sale at the price of $40,000.00? Would you want all cash, or just what payments would suit you? Kindly let me know at your earliest convenience, and I will be pleased to make the sale on the usual commission basis.” The defendant’s letter, of November 8th, in response to the plaintiff’s last quoted, is a clear refusal to accept the terms offered. In addition to that, he says: “I am not particularly anxious to sell, but might consider a cash offer.” This language cannot be construed into an acceptance of plaintiff’s offer so as to make a contract of employment between the parties. The 30 days would expire by the terms of his own letter on December 5, 1906. It is elementary that, to constitute a contract baséd upon offer and acceptance, the acceptance must coincide with and be -in the same terms as the offer, otherwise the contract is not complete, and all that passes between the parties can be deemed only as negotiation. 9 Cyc. 265; Clark, Contracts, § 21. 3. But if we concede that the defendant accepted the offer of November 5, 1906, made by the plaintiff, including the terms of thirty days in which to effect the sale at the price named, what is the result? The plaintiff has not performed his part of the contract, for his earliest mention of finding a purchaser at any price is in his telegram of December 14, 1906. The plaintiff is bound by the terms of his own offer, and, not having found a purchaser within the time stipulated, he cannot [286] recover. Hardy v. Sheedy, 58 Or. 195 (113 Pac. 1133). 4. There is yet another obstacle to prevent the plaintiff from recovering in this action, even if his offer to take the property to sell on commission had been accepted so as to form a contract. He alleges that he was employed to find and procure a purchaser, and that he performed the contract, all of which is denied, and so he is put upon the proof of his allegation. In performance of such a contract on his part, the seller’s real estate broker must do one of two things before he can recover his commission from his employer. He must furnish his principal a binding contract executed by an intending purchaser who is able to buy and upon whom, if he fails to buy, the principal may have recourse;, or the broker must by some means bring the buyer and seller together or into communication with each other so they may themselves make the contract and conclude the sale. York v. Nash, 42 Or. 321, 330 (71 Pac. 59) ; Hardy v. Sheedy, 58 Or. 195 (113 Pac. 1133). It is not pretended that the plaintiff secured from Baker and Maegley any contract which the defendant could enforce against them. 5. The receipt quoted in the eleventh finding of fact is not such a contract', and it does not appear that even this receipt was ever exhibited to the defendant. Hence there is nothing to satisfy the first alternative allowed to the agent in performing his contract to procure a purchaser. 6. The latter alternative is not satisfied by the agent informing his principal that he has sold the property or has found a purchaser without disclosing the identity of the intending purchaser, for, under such circumstances, the owner is authorized to conclude that the broker is himself speculating on the property in violation of his duty. Hayden v. Grillo, 35 Mo. App. 647; Baars v. Hyland, 65 Minn. 150 (67 N. W. 1148) ; Burnett [287] v. Edling, 19 Tex. Civ. App. 711 (48 S. W. 775) ; Gerding v. Haskin, 141 N. Y. 514 (36 N. E. 601). In the present case none of the correspondence, which, according to the findings, constitutes the entire negotiations, contains any intimation whatever about the identity of the proposed purchasers, and, for all that appears, they are unknown to the defendant even to this day. It is possible that if the complaint were drawn upon the theory that the defendant had broken the contract resulting in damage to the plaintiff, or that full performance by the plaintiff had been waived by the defendant, a different case would have been presented. 7. But, having pleaded full performance, the plaintiff is bound by the allegation as thus cast, must prove it as laid, and until he discloses to the defendant the identity of the intending purchaser, either by a contract signed by the' buyer or bringing him to the notice of the seller in some way, the agent’s contract is not performed. The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. . Reversed. Decided March 26, 1912.