Taggart v. Hunter

Mr. Justice Bean delivered the opinion of the court. The errors assigned relate principally to the sufficiency of the evidence under the statute of frauds and to the admission of oral evidence, which the defendants maintain was barred by Section 808, subdivision 8, L. O. L. From the bill of exceptions it appears that upon the trial plaintiff testified to a verbal employment of himself to sell the lands. Upon objection being made counsel for plaintiff stated that a writing had been given, but was lost, offered to prove the contents thereof, and introduced evidence tending to show that — 142 — the memorandum had been mislaid and could not be found. The substance of plaintiff’s testimony as to the contents of the agreement, introduced over defendants’ objection, was as follows: “I met Mr. Hunter on the sidewalk in Bend, and I told him I had a buyer for a tract of yellow pine timber, and I wanted to know if he knew of any. He says, ‘Yes, John; we have got the best tract in Oregon.’ I says, ‘How much is it?’ He says, ‘Practically 27,000 acres.’ And he says, ‘We have got it’- — no, excuse me. I asked him if he could deliver it, and he told me they could, that they had it tied up with an option, but their time was very short, and they had to handle it quick, or they would lose it. ‘Well,’ I says, ‘how much will it take to handle it?’ and he says, ‘about half a million dollars.’ ‘Well,’ I says, ‘I have only one party to present this to, and they are good people.’ I says, ‘I think that they are able to handle it.’ And he wanted to know where they were. I told him that the secretary and treasurer of the company was here in Portland, and that he was the only man that I wanted to present it to; that the tract would not be peddled around, but that I would have to have written authority to present this tract to them, because he would not allow any bullconning. * * He told me he would give it to me. I says, ‘Now, if you will fix that up, authorizing me to sell this tract of timber, and state in it a preliminary of what the tract contains, and so forth, and so forth, so I can present it intelligently, and give me the writing, I will take it to Portland.’ ” Thereupon plaintiff testified that defendant Hunter gave him a writing in response to the conversation at the office of the defendants. When asked what the letter contained, Taggart stated that it was in effect as follows: J. W. Taggart: “I hereby authorize you to sell this tract of yellow pine timber,” located in Crook County, a plat of which is inclosed, and stating how many thousand acres of the land could be cultivated — 143 — after the timber was all off, how many thousand feet it cruised to the acre, about the number of logs it was, surface cleared, and the price, $22.50 per acre. “[Signed] Hunter & Staats.” Thereupon plaintiff stated that he took the letter and plat to a Mr. Noud, secretary and treasurer of the Noud-Blacker Timber Company, in Portland, a prospective purchaser, and left them with him. Afterward, in August, Mr. Noud and one Larry S. Franck went to Bend, from which place plaintiff went with them to where Mr. Hunter was taking a vacation on the Metolius River, about 30 miles away, and introduced them to Mr. Hunter. They examined the timber land and had the timber cruised. A stock company composed of Mr. Noud, his father, and associates was formed, and a sale was ma.de to them. Negotiations were pending until about the next December, and considerable correspondence between plaintiff and Noud in regard to the transaction appears in the record. After the deal was closed defendants paid plaintiff $500 for his services, he protesting that nothing less than $5,000 was sufficient; that this amount was a reasonable compensation. Defendant Hunter told plaintiff that it was “an awful lucky thing that you got those fellows,” and that there would be a big thing in it for plaintiff if the deal went through. Hunter was called as a witness for plaintiff, and testified that the land in question was sold by L. S. Franck to the Northwestern Timber Company for $488,000; that he and Mr. Staats, who are real estate dealers, received about $23,000 profit from the deal, $10,000 of which was stock in the corporation; that they held an option on the land for which they paid $500. Defendants objected to all this testimony, moved to strike it out for the reason stated, and at the close of plaintiff’s case moved for a nonsuit upon — 144 — the ground that the evidence was not sufficient to be submitted to a jury, which motions were denied. Thereupon defendants introduced evidence tending to show, among other things, that defendants paid plaintiff $500, for the reason that Mr. Noud took $5,000 of stock in the purchasing company. Defendant Hunter also testified on behalf of the defendants in part as follows: • “I never told the plaintiff I would give him anything he might ask, or words to that effect, in case he found a buyer for this land, or anything of the kind. His testimony in that respect is not true. At the time I gave him the map or plat containing a description of the land, the only writing I gave him, according to the best of my knowledge, was just a description of the land, telling how many acres there were in the tract, about 22,101 acres. * * I could not say whether there was a letter, or whether it was written on the plat. * * He was down at Portland about a week, and when he came back he said, ‘Boys, I am sorry I could not do anything with the land in Portland.’ He said that he put it up to Mr. Noud, but that the tract was too large for him to handle, so we did not think anything more about it.” Hunter stated that the $500 was paid to the plaintiff as a present because of the fact that Mr. Noud had taken $5,000 of the stock of the purchasing company. On cross-examination, he testified that defendants gave the plaintiff the plat because he said, “I am going to Portland, and I might be able to do something with this land for you” — that he might find them a buyer. Thereupon the witness was asked this question: “Q. Well, what did you give it to him for?” To this question the defendants objected on the ground that oral evidence is incompetent to prove the employment of plaintiff, which objection was overruled by the court, — 145 — and the defendants saved and were allowed an exception to the ruling, whereupon tjie witness answered: “A. Well, he said he thought he could get us a buyer for this land, and that was the object. We thought we would give it to him and let him try. We knew he could not do anything without a plat or a description of the land. We would have been glad for him to furnish us a buyer. We intended for him to get a buyer if he could. We gave him a description of the land in writing, with the price, $24 an acre, and let him bring it to Portland.” The defendant W. H. Staats was called as a witness on behalf of the defendants, and, being sworn, testified as follows: “I saw the plat and the writings that were delivered to Mr. Taggart about the 10th of July, 1910, which he has testified about and which he brought down to Portland to show to Mr. Noud. The land that we had an option on was blocked off on the plat with red ink, and we wrote a little description, telling the number of acres, 22,101, and the lay of the land, and that it was good grazing land after the timber was taken off, and that is about all there was on that plat. There was no other writing besides the plat. The price was stated, $24 per acre. ’ ’ On cross-examination, this witness stated that the writing given plaintiff was written by Mr. Hunter, but was not signed; that it did not indicate that Mr. Hunter had the land for sale, but was just a piece of paper with the price on it; that defendants knew plaintiff was coming to Portland, and expected him to use the plat; that plaintiff asked defendants for the plat, and said: “ ‘I am going to Portland, boys, and I understand you have got some yellow pine timber to sell.’ We told him we had, and he said, ‘If you will make me a plat of it, I will take it along, and maybe I can do — 146 — something with it.’ We gave it to him on those terms, and he took it along.” No objection was made to the cross-examination of Mr. Staats. It is contended by counsel for plaintiff that the direct and cross-examination of defendants discloses the contract of 'employment alleged in the complaint; that no express promise to pay was necessary to be proved (citing Kiser v. Holladay, 29 Or. 338 [45 Pac. 759] ); that where a party admits the existence of an agreement within the statute of frauds, or permits parol evidence of its contents to be proved without objection, he waives his right to require a writing (citing Sorenson v. Smith, 65 Or. 78, 92 (129 Pac. 757, 131 Pac. 1022, Ann. Cas. 1915A, 1127, 51 L. R. A. (N. S.) 612) ; Scofield v. Stoddard, 58 Vt. 290 (5 Atl. 314); Livermore v. Stine, 43 Cal. 274). 1. It is first urged by defendants that the trial court erred in permitting the plaintiff to state the conversation between himself and defendant Hunter in regard to employment. If this were all, there would be grounds for the objections, but when we consider that the plaintiff further testified that the defendants gave him a writing in the form of a letter “in response to said conversation,” meaning, as we construe the evidence, that the writing contained the substance of and confirmed the same, it appears to be stating the contents of the writing backward, and is not a reversible error: Fish v. Henarie, 13 Or. 156 (9 Pac. 322). We come then to the important and often troublesome question as to the sufficiency of the writing to take the case out of the statute of frauds or the waiver of any defect therein or want of writing by defendants. Section 808 provides, in part, as follows: — 147 — “In the following cases the agreement is void unless the same or some note or memorándum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases‘prescribed by law. * * 8. An agreement entered into subsequent to the taking effect of this act, authorizing or employing an agent or broker to sell or purchase real, estate for compensation or a commission.” 2. As an illustration, in an agreemnt of sale, the memorandum must contain the full terms of the contract; the price should be stated, but if it contains a recital that the price has been received, it is then unnecessary. It, is also unnecessary if no price has been named in the contract, or the property has been sold for what it is reasonably worth: 3 Jones Ev., § 429; Hoadly v. McLaine, 10 Bing. 482; Browne, Stat. Frauds (5 ed.), § 377; Chase v. Lowell, 7 Gray (Mass.), 33. 3. It should be borne in mind that the memorandum required in the various sections of the statute is not .the contract itself. The writing is only the evidence of the contract showing the terms and parties: 3 Jones, Ev., § 430. If the law imports a consideration for a contract falling within the statute of frauds, no consideration need be delineated in the memorandum thereof: 20 Cyc. 263. It was said by Mr. Chief Justice Lord in Johnston v. Wadsworth, 24 Or. 494, 503 (34 Pac. 13, 15) after referring to our statute as it was then: “The object of the statute of frauds was to prevent the facility to fraud and perjury to which contracts dependent upon the memory of witnesses were exposed, by requiring them to be reduced to writing. “When this is done, there does not seem to be any rea — 148 — son why the consideration might not be proved by parol, as in the case of any other contract, or, if there is. any reason for expressing the consideration, the true one ought to be expressed, yet the authorities cited show that the words ‘for value received,’ or that a seal itself, sufficiently expresses the consideration.” In that case no consideration for the agreement to purchase real property was expressed in the memorandum except by the seal of the defendant. 4-6. The statute of frauds, particularly subdivision 8, which is the amendment of 1909, requires that some note or memorandum of the agreement, “authorizing or employing” an agent or broker to sell or purchase real estate for a compensation, be in writing. A parol contract which was definite enough to be enforced before the amendment was enacted is enforceáble since the statute was passed, if it is reduced to writing and signed by the party to be charged. In the case at bar the action is based upon the agreement of defendants to employ plaintiff to sell their lands. The principal is named, the agent is mentioned, the land is described, and the price or consideration for which the property is to be sold, given. What the agent is to do clearly appears, viz., to sell the land. “It was subscribed by the party to be charged.” There is another element of the contract, the compensation of the agent, that may or may not be definitely agreed upon. If it is agreed upon, it becomes one of the terms of the agreement, and should be stated in the memorandum, and, if not, the law implies an agreement to pay what it is reasonably worth. The statutes of Nebraska and New Jersey require the compensation to be fixed and stated in the agreement. No express provision to pay was necessary to be proved: Kiser v. Holladay, 29 Or. 338 (45 Pac. 759). The compensation for the services to be — 149 — performed is the price thereof. It should not he confounded with the consideration for the promise or employment: Jones, Ev., § 429, p. 128. The consideration for the agreement which is clearly inferable from the terms of the memorandum was that plaintiff should find a buyer for the timber lands if he could. There was evidence tending to show, and the jury might reasonably find from the writing in effect, that defendants authorized plaintiff to sell their lands if he could find a purchaser for the same. When this proposal was accepted and acted upon by the plaintiff in procuring a purchaser who purchased the land and defendants paid plaintiff $500 therefor, it became a binding recognized contract: Henderson v. Lemke, 60 Or. 363 (119 Pac. 482). It cannot be successfully contended that it was necessary for the promisee, Taggart, to sign the memorandum or accept the proposition in writing. No particular form of words expressive of the consideration for the grant of authority to sell real property need be written in the memorandum, but the consideration must nevertheless appear: Johnston v. Wadsworth, 24 Or. 494, 503 (34 Pac. 13, 15); Church v. Broion, 21 N. Y. 315, and cases there cited. If from a reasonable construction of the instrument the consideration is necessarily inferable from the terms thereof, it is expressed within the meaning of the statute. The defendants, after plaintiff had rested his case, introduced evidence tending to show the employment of plaintiff and the transaction of furnishing him with the plat and description of the timber lands in order that he might make the sale. In the consideration of the motion for a nonsuit, where the record contains all the evidence produced upon the trial, as it does in this case, we must consider the entire evidence: Trickey v. — 150 — Clark, 50 Or. 516 (93 Pac. 457); Crosby v. Portland Ry., L. & P. Co., 53 Or. 496 (100 Pac. 300, 101 Pac. 204); Oberstock v. United Rys. Co., 68 Or. 197, 204 (137 Pac. 195); Taylor v. Taylor, 54 Or. 560, 568 (103 Pac. 524). The amendment to the statute of frauds was enacted for the purpose of preventing real estate brokers from fraudulently claiming a commission when they were not authorized in writing to make the sale. It was not the legislative intent to require any more specific or technical employment or authorization for a broker to act than had been theretofore necessary: It was the main object that such authority should be proven by a writing or secondary evidence of its contents. The law seems to contemplate that the authorization of a broker to sell land should be in the ordinary form used by men in business. It may be informal as long as it complies with the statutory requirements. Such memorandum should receive a practical construction. Taggart could not, in the nature of affairs, agree to sell the land: Brown, Stat. Frauds, § 353a. The writing proven by plaintiff to have been executed by defendants Staats and Hunter was sufficient to carry out the spirit and letter of the statute and take the case out of the statute: Straight v. Wight, 60 Minn. 515 (63 N. W. 105); Brewer v. Horst-Lachmund Co., 50 L. R. A. 240, note. 7. The cross-examination of defendant Hunter in regard to the delivery of the plat to plaintiff related strictly to the matter brought out on his examination in chief, and was not objectionable. 8. Guided by Article VII, Section 3, of the Constitution as amended in 1910 (see Laws 1911, p. 7), we cannot say there was no competent evidence to support the verdict; therefore there was no error in overruling — 151 — the motion for a nonsuit or directed verdict. It follows that the judgment of the lower court is affirmed. Affirmed. Mr. Chief Justice Moore and Mr. Justice Eakin concur. Mr. Justice Harris dissents.