Puffer v. Badley

BENSON, J. 1. Our attention is first called to the fact that the court admitted in evidence, over defendant’s objection, a written instrument which reads thus: “For services rendered in the sale of my property located between 16th and 17th Street on Washington Street and more fully described as Number 531 on Alder Street and 528-528% and 530 on Washington Street in the City of Portland, State of Oregon, I hereby agree to pay to O. V. Badley the agent who sold said property to one J. R. Ellison the sum of Seven Hundred and Fifty ($750.00) Dollars and I hereby order and direct Geo. W. Gearhart the attorney for J. R. Ellison to pay to O. Y. Badley said sum of $750.00 when final settlement is made and Mr. Ellison’s part of the agreement for the exchange of the properties is fulfilled, said contract being a part of this memorandum. “Cora E. Puffer. “Received payment 8-25-1917. “O. Y. Badley.” This document was introduced by the plaintiff as evidence of the fiduciary relation existing between plaintiff and defendant in the transactions involved herein. Defendant argues that it is inadmissible for the reason that it does not satisfy the requirements of Section 808, L. O. L., as amended by Laws of 1917, page 786, which is the statute of frauds. The portions of this statute which are to be considered in this connection, are as follows: — 364 — “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 a compensation or commission; provided, however, that if the note or memorandum of such agreement be in writing and subscribed by the party to be charged, or by his lawfully authorized agent, and contains a description of the property sufficient for identification, and authorizes or employs the agent or broker named therein to sell such property, and expresses with reasonable certainty the amount of the commission or compensation to be paid such agent or broker, such agreement of authorization or employment shall not be void for failure to state a consideration. ’ ’ 2. It» is clear that the writing in question satisfies every requirement of the statute, including the signature of the defendant, but it is urged that the instrument discloses upon its face the fact that it was executed after the sale was made, and was not signed by the defendant until after the payment of the commission therein specified. We are of the opinion, however, that a written memorandum of the agreement executed after the performance of the services satisfies the demands of the statute just as effectively as if it were written and signed prior thereto, and in this view we are supported by the cases of In re Balfour & Garrette, 14 Cal. App. 261 (111 Pac. 615); Carrington v. Smithers, 26 Cal. App. 460 (147 Pac. 225); Muir v. Kane, 55 Wash. 131 (104 Pac. 153, 19 Ann. Cas. 1180; 26 L. R. A. (N. S.) 519); Ide v. Stan — 365 — ton, 15 Vt. 684 (40 Am. Dec. 698). The writing in question was properly admitted in evidence, and very clearly tended to establish plaintiff’s contention that the relation of principal and agent existed between herself and defendant in the transactions which are the subject matter of the controversy. 3. It was defendant’s contention that he was at no time acting as the agent for plaintiff, but that throughout the entire negotiations he was representing Ellison only. In support of this theory he offered in evidence the deposition of R. W. Zimmerman, who at the time of taking the deposition, and at the time of trial, was with the American Expeditionary Force in France. By this evidence it was sought to establish that Zimmerman was a real estate broker acting independently of defendant, with whom plaintiff had “listed” her property for sale; that he, as her agent, had conducted the negotiations with defendant as the agent of Ellison; had communicated to her, by telephone, the full details of Ellison’s original offer, which had been rejected by her; that before the bargaining was finally concluded, he was called into the public service, and left the conclusion of affairs entirely in the hands of Badley, the defendant. This evidence was not excluded by the court, but was admitted “subject to the objection,”, the court evidently treating the case, so far as procedure is concerned,- as if it were a suit in equity. However, the court at the same time announced that in weighing the evidence he should not consider the evidence tending to prove agency in, Zimmerman, for the reason that if there were any such agency its proof rested in parol, and was incompetent, as violating the statute of frauds as prescribed in Section 808, L. O. L. — 366 — It may be — although it is not necessary for us to decide — that such parol evidence is admissible collaterally, to show the relationship of the parties, where the enforcement of the specific contract is not an issue, but, having all of the evidence before us, and giving it all of the effect to which it is entitled, the finding of the trial court that the defendant was the agent of plaintiff, is fully justified. 4, 5. Plaintiff introduced, over the objection of defendant, the testimony of B. D. Sigler as to the market value of the properties which were conveyed by defendant to plaintiff, and this ruling is assigned as error. Plaintiff concedes that under the pleadings, this evidence is not strictly relevant to the issues, but urges that it was relevant and competent for the purpose of showing that plaintiff did not act capriciously in repudiating the transaction of which she complains, but had a real grievance. For this purpose it was admissible, but even if it were otherwise, we are unable to discover wherein the defendant suffered any injury therefrom, since the .final determination of the cause is based upon the fact that the relation of principal and agent existed between the parties, and that defendant, while acting as agent for plaintiff, failed to disclose to her the true offer made by Ellison for her property. In Williams v. Burdick, 63 Or. 41 (125 Pac. 844, 126 Pac. 603), we find this language: “In an action tried by a court without a jury, the receipt of incompetent evidence, properly excepted to, is not prejudicial, unless injury has necessarily resulted.” 6. It is also urged that plaintiff must fail by reason of the fact that she had both actual and constructive knowledge of Ellison’s offer, and of the fact that some — 367 — of the properties belonged to defendant before the deal was finally consummated. Regarding actual knowledge, the defendant introduced evidence to the effect that Zimmerman, in a telephone conversation, informed Mrs. Puffer of Ellison’s offer, and that she rejected it. This testimony is flatly contradicted by her, and the conflict is conclusively disposed of by the finding of the trial court. 7. The contention of defendant in reference to constructive knowledge is based upon the theory that George W. Gearhart was acting as legal adviser for plaintiff in the transaction, and that he had full knowledge of the facts. The record discloses that Gearhart was representing Ellison in the matter, while Mrs. Puffer was relying upon the services and advice of Judge H. H. Northup. Judge Northup at this time became ill, and asked Mr. Gearhart to act for him in passing upon the sufficiency of the title to the several properties, as disclosed by the several abstracts. This he did, and Mrs. Puffer accepted his assurance as to the'title in the tracts of land. It is conceded by all that in every other detail, Mr. Gearhart was the attorney for Ellison. Therefore any knowledge which Gearhart may have had as to the Ellison offer, and the source of the real estate which was actually conveyed, cannot be imputed to the plaintiff, for: “The rule that notice to an agent is notice to his principal is not applicable unless the notice has reference to business in which the agent is engaged under authority from the principal, and is pertinent to matters coming within that authority; and hence a principal is not affected with knowledge which the agent requires while not acting in the course of his employment, or which relates to matters not within the scope of his authority, unless the agent actually communicates his information to the principal”: 2 C. J. 863. — 368 — 8. It is further urged that when plaintiff tendered to defendant, a deed to the properties conveyed to her by him, and demanded payment of the money he had received therefor from Ellison, she made no mention of the furniture which was in the Firland house. • In regard to this it may be said, that there is evidence to the effect that when she made her demand for a rescission, the defendant promptly announced that the transaction was a closed incident, and that he would not rescind. Under such circumstances, further details would have been futile, and not required.. We find no reversible error In the record, and the judgment is affirmed. Affirmed. McBride, C. J., and Burnett and Harris, JJ., concur.