Great Western Land Co. v. Waite

Mb. Justice Burnett delivered the opinion of the court. The chief thing to be determined is whether the papers offered by the plaintiff as proof of its allegation of its hiring as a real estate broker by the defendant were sufficient within the statute of frauds of this state. There are other questions urged relating to the — 490 — admissibility of what purported to be carbon copies of certain writings without having given notice to produce the originals; but we deem it unnecessary to consider more than the principal contention. According to the findings, the plaintiff wrote to the defendant November 25, 1913, suggesting that it was in a position to obtain a purchaser for the realty mentioned and desiring to know what commission he would pay in event of a sale and upon what terms he wished to dispose of the property. This letter was not answered and subsequently the plaintiff wrote another communication, the contents of which were not disclosed as it was not produced. The bill of exceptions discloses the following correspondence between the parties: “Portland, Ore., December 18,1913. “Great Western Land Co., “Eugene, Oregon. “Gentlemen: Your favor of December First at hand and, in answer to the same, beg to state that, if you have a purchaser for my Round Prairie tract of- land, consisting of thirty-five hundred eighty-two (3582) acres, I will make the price Fifteen Dollars ($15) per acre net to me. This is a bed rock price and will only* be offered at that price for a short time. If, in case you have an interested party, I will give you a reasonable time in which to close the deal, but would not care to give any extended option at this time. This place sold for Fifty-four Thousand ($54000.00) six years ago, and since that time, farm lands have more than doubled in value in our county. My terms would be one half cash, and balance on three or five years’ time, at eight per cent. These terms might be changed a little to suit purchaser, but any amount left standing on the place would have to bear eight per cent interest. “Very respectfully yours, “F. B. Waite, “Sutherlin, Oregon.” — 491 — “December 20, 1913. “F. B. Waite, “Sutberlin, Oregon. “Dear Sir: Replying to your favor of the 18th inst. and thanking you for your kind offer, on the basis of which we are now endeavoring to negotiate a deal for your property, we will say that it is possible that our client may not be able to pay one half cash at this time, but we believe that such a substantial payment will be made that the balances would be amply secured. We are co-operating with some other people in the matter of handling this deal and naturally will endeavor to make as much profit out of the transaction as possible, and will expect you to protect us in the matter of difference between the net price and the quotations to be made to the purchaser; we understand this is in the neighborhood of $20.00 an acre, although it may be considerably less before the deal is finally consummated. We feel that you are entitled to know the details of the transaction and shall be pleased to keep you informed as to our progress in the matter. Again thanking you for your favor and trusting that we may be able to be of service to you, we beg to remain, “Yours respectfully, “Great Western Land Co., Inc., “By-, President. “OSH-H.” In addition thereto the instrument in writing here set out signed by the defendant was identified and introduced : “Sutherlin, Oregon, Jan. 6, 1914. “I hereby agree to protect you, the Great Western Land Co., of Eugene, in the sale of 3582 acres Round Prairie to Reverend Doering or associates. The price shall be not less than $16.50 to the Rev. Doering and $15 net to me subject to change only under agreement to you. “F. B. Waite.” So far as relates to the present contention, Section 808, L. O. L., reads thus: — 492 — “In the following cases the agreement is void unless the same or some note or memorandum 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 commission.” 1, 2. Remembering that the law says no evidence except the writing shall be received to prove the agreement, the task before ns is to determine whether the writings in question comply with the terms of the enactment. In passing, we remark that the exception relating to secondary evidence of its contents naturally refers to cases where the writing is lost or is in the possession of the adverse party who refuses to produce it upon proper notice. The letter of December 18,1913, signed by the defendant and addressed to the plaintiff, contains no intimation that the former intended to employ the latter. It merely gives terms upon which he would sell to the client of the plaintiff. Nothing more is shown by that communication than that the defendant was negotiating- on his own account with the plaintiff as the representative of someone else. The crux of the situation is in the effect of the writing of January 6, 1914, above quoted. Even in that there is no language whatever that can be construed as a hiring of the plaintiff, yet this is the very thing which the pleading put in issue and in support of which proof was required. Again, although the defendant agrees to “protect” the plaintiff, whatever that may mean, there is no consideration expressed in the document even for that covenant. There may be a mone — 493 — tary consideration or a promise for a promise, bnt neither of these things is expressed in the writing. In other words, there is nothing stated in the instrument to which reference may he had as inducing Waite to subscribe the instrument. It is not enough that the language might imply a consideration, for the statute plainly says the consideration must be expressed. It appears by the bill of exceptions that despite the defendant’s objections the trial court admitted oral testimony by which the plaintiff sought to establish the contract. This is in plain derogation of the requirements laid down by the Code and was manifest error. Unless we can find sufficient in the paper to establish the contract of hiring and the consideration for it the plaintiff is without proof, for the statute not only says that the agreement is void unless it is couched in the terms prescribed, but also that no evidence other than the writing shall be received. The matter has received consideration by this court in the following cases: Taggart v. Hunter (on rehearing), 78 Or. 151 (152 Pac. 871); Lueddemann v. Rudolf, 79 Or. 249 (154 Pac. 116, 155 Pac. 172). The citations from other states have but little value under our own enactment for, as pointed out by Mr. Justice Benson in Taggart v. Hunter, 78 Or. 151 (152 Pac. 871), our own legislation is the most drastic of its kind in the United States in that it not only declares the contract void, unless there is a memorandum thereof in writing expressing the consideration and signed by the party to be charged, but goes further and excludes all other evidence of the agreement. All these writings were challenged by the objections of the defendant specifying wherein they failed to comply with the statute of frauds, but were received in evidence and were allowed to be supple — 494 — mented by oral testimony also over tbe protest of tbe defendant. Under our Code the plaintiff was in court without any proof of the allegation of his complaint where challenged by the denials of the answer. The judgment of the Circuit Court is therefore reversed and the cause remanded, with direction to enter the judgment of nonsuit for which the defendant asked at the close of plaintiff’s case in chief. (171 Pac. 193.) Mr. G. L. Reames and Messrs. Littlefield & Maguire, for the petition. Mr. John K. Kollock, contra.. Reversed "With Directions. Rehearing Denied. Mr. Chief Justice McBride, Mr. Justice Harris and Mr. Justice McCamant concur.