DAILY CAPITAL ' JOCK SAL," SALEM," 0REG05."WEDXESDAT. OCTOBER 25. 1911.
OREGON SUPREME COURT DECISIONS
Fill Text Pibllihed bj CoirUir of I. A. Turner, Reporter of the
Supreme Coart
Henry y. Hurler, Multnomah County.
Decided October 1, 1911.
Charles K. Henry, respondent, v.
Ceorge A. Harker, appellant. Appeal
from the circuit court for Multnomah
county. Hon. C. U. Gantenbeln, Judge.
Argued and submitted October 3, 1911.
Ongood Putnum and Williams, Wood
& Linthicum for appellant. Malarkey.
Seabrook & Stott for respondent. Bur
nett, J. Reversed.
The substance of the complaint Is
that along about November, 19U6, the I
defendant employed the plaintiff as
a real estate broker to find and secure
a purchaser for certain real property,
situated in Portland, for the sum of
$45,000.00 agreeing to pay the plain
tiff the usual and customary commis
sion paid to real estate agents In said
city; that plaintiff accepted the em
ployment and In pursuance thereof,
on December 15, 1906, found and pro
cured Frank C. Ilaker and A. II. Maeg- I
ley as purchasers for the premises at .
the pnee stipulated, and having noti
fied defendant thereof the latter re
fused to sell although Baker and
Maegley were at all times ready and
willing to purchase at that price.
The defendant admits his refusal to
8ell the property and admits that the
plaintiff notified him that he had sold
the property for $45,000.00, but other
wise the complaint Is traversed by the
denials of the answer. The defendant
affirmatively alleges that immediately
upon notice of the property having
been sold he advised the plaintiff that
the alleged sale was unauthorized and
that he would not make the same.
This allegation of the answer was
traversed by the reply. The cause was
tried by the court without a Jury. The
court In Its findings, after giving the
character of the plaintiff as a real
estate broker and stating that the de
fendant was the owner of an undi
vided property described, finds as a
matter of fact that no oral communi
cations were had between the plaintiff
and the defendant concerning the mat
ters referred to In the pleadings, and
that all the negotiations and transac
tions between them are shown to be
and consist In correspondence which,
no far as we deem It material, Is here
set down:
1.
"Portland, Oregon, March E, 190C
"Mr. O. A. Harker,
"Santa Barbara, California.
"Dear Sir: I have some prospec
tive customers for first street prop
erty, and as you are the owner of
tho south half of lot No. 7, and tho
north half of lot No. 6, In block No. 3,
I wish to Inquire whether you will
sell this property, and if so what your
price would be, and also your terms.
If you desire to place this property
In my hands for sale on the usual
commission basis, 1 will give it my
immediate and prompt attention.
"Respectfully yours,
"CHAUUiS K. HENRY."
2.
"Santa Barbara, March 10, 1900.
"Mr. Charles K. Henry.
"Dear Sir: Yours of March 5 at
hand. In reply will say that we will
sell the property you mention for $40,
1100.00. Terms cash. Though we are
not putting the property on the mar
ket, we would bo willing to huve any
transaction on tho above terms go
through your hands.
"My permanent address Is Mill Val
ley, Marin County, California. Very
truly yours, OKOHOK A. HARKER."
3.
"Portland. Oregon, Oct. 9, 1906.
"To Dr. George A Harker,
"Mill Valley, Marin County, Cal.
"Wire best terms on gross price.
Forty thousand dollars on First street
property. CHARLES K. HENRY."
4.
"Portland, Oregon, Oct. IS, 1906.
"Dr. George A. Harker,
"Mill Valley, Marin County, Cal.
"Dear Sir: When I wired you it
was my object to get terms on vour
place. Your price for it some time
ago was $40,000.00, and I had quoted
It to several people. At that time it
appeared that the tenants were going
to move, and buyers did not like to
buy with that uncertainty before them.
"Would be Dleased to hav vnn atnte
your lowest price and terms, allowing
me uie usual commission in the event
of making the sale.
"Trustine to he favnrefl with in
early reply, and thanking you in ad
vance, i am, respeetrully yours,
"CHARLES K. HENRY."
5.
"Mill Valley, October 30, 1906.
"Mr. Charles K. Henry.
"Dear Sir: Your letter of the 18th
waB sidetracked In our local post of
fice, otherwise I should have answered
before.
"Since stating my figure on the
First street property 1 have decided
to make improvements and lease It
for a number of years. As It will
bring an increased rental I would not
sell for $10,000.00 I consider the prop
erty a good Investment at $45,000.00
and would not sell below that figure.
"Very truly yours,
"GEORGE A. HARKER."
6.
"Portland, Oregon, Nov. 5, 1906.
"Dr. George A. Harker,
"Mill Valley, California.
"Dear Sir: Just In receipt of your
letter of October 30th. eivine the nrlce
of $10,000.00 for your First street
property, will yon kindly give me a
short time, say thirty days. In which
to effect the sale at the orlce of J40.-
000.00? For how long does the lease
run, ana at wnat rate or Interest?
"Would you want all cash, or just
what payments would suit you? Kindly
let me know at your earliest conven
ience, and I will be pleased to make
the salo on the usual commission
basis.
"Trusting I may be favored with an
early reply. I am, respectfully yours,
"CHARLES K. HENRY."
7.
"Mill Valley, November 8, 1906.
"Mr. Charles K. Henry.
"Dear Sir: Yours of the 5th at
hand. I think you must have made a
mistake nbout my price. 1 wrote, or
it was my Intention to write, $15,000.00
as the price.
"According to the terms of the lease
I am to spend $.1,000.00 on the prem
ises. The lease Is for 5 years at
$300.00.
"I am not particularly nnxlous to
sell, but might consider a cash offer.
"Very truly yours,
"GEORGE A. HARKER."
8.
"Portland. Oregon, Nov. 14, 190G.
"Dr. George A. Harker,
"Mill Valley, California.
"Dear Sir: Replying to your letter
of the 8th Inst., I beg to say that It
will be difficult to get $15,000.00 for
the property under a long time lease
at that rate. The long lease bars
other people from the property, and
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does not pay much after deducting the
taxes and Insurance. I doubt if I can
get more than $42,500.00. However, I
will make the best efforts I can, and
If I get an offer near that price I
will wire you. As I understand It you
are asking all cash. Rest
assured, Mr. Harker, that I will do
the best 1 can to get $45,000.00 for
your lot, although I consider It rather
high.
"Trusting I may be able to effect
the sale for you In the near future,
I am, respectfully yours,
"CHARLES K. HENRY."
9,
"Portland, Oregon, Dec. 14, 1906.
"Dr. Geo. A. Harker,
".Mill Valley, California.
"New Increased assessment makes I
property hard to sell. Have tried
many buyers for First street property.
Best offer I get Is forty-four thousand
dollars cash. Wire answer at my
expense. CHARLES K. HENRY."
10.
"Mill Valley. Cal., Dec. 14, 1906.
"Mr. Charles K. Henry,
"122 Third St., Portland, Oregon.
"Will not sell at price mentioned.
"G. A. HARKER."
11.
"Portland, Oregon, Dec. 15, 1906.
"Dr. George A. Harker,
"Mill Valley, California.
".Have sold First street property for
your price, $45,000.00. I rebating five
hundred dollars of my commission to
purchaser to effect sale. Forward ab
stract. CHARLES K. HENRY."
12.
"Portland, Oregon, Dec. 15, 1906.
"Dr. George A. Harker,
"Mill Valley, California.
"Dear Sir: I wired you yesterday
an offer of $44,000.00 for your First
street property. On receipt of your
reply, I finally prevailed upon the
purchaser to come up to your price
of $15,000.00, nnd in order to do so I
had to rebate five hundred dollars
of my commission to them. The new
assessment of $37,700. 00 will bring the
tax up so high that there Is not much
margin for investment. I
wired you tmlay notifying you of the
sale at your price, $45,000-00 as above,
and have accepted a deposit of one
thousand dollars on It, and the re
mainder to be paid when the abstract
nnd title are found perfect.
Kindly forward your abstract that it
may be brought up to date, that we
may get the transaction finally closed.
"Respectfully yours,
"CHARLES K. HENRY."
13.
"Mill Valley, December 17, 1906.
"Mr. Charles K. Henry.
"Dear Sir: I am In receipt of "your
telegram saying that you have a pur
chaser for the property at $45,000.00.
Though this Is a good price, consid
ering the terms of the lease, we have
decided on account of the Increasing
values not to sell at present.
"Regretting to have put you to any
trouble, I am, very truly yours,
"GEORGE A. HARKER."
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14.
"Portland, Oregon, Dec. 20, 1906.
"Dr. George A. Harker,
"Mill Valley,. California.
"Your letter of seventeenth a sur
prise. I sold your property under
written authority, in good faith, for
your price, cash. Buyers will insist
on delivery, and I shall insist on my
commission. Wire ratification or suit
will be brought immediately.
"CHARLES K HENRY."
There is an additional letter from
plaintiff to defendant under date of
December 21, 19ut but as it only
quotes and amplifies upon the tele
gram last mentioned, it is not deemed
necessary to reproduce it here. The
court also made a finding of fact as
follows:
"11. On December 15. 190G, the
plaintiff received from said Frank C.
Baker and A. H. Maegley $1,000.00 on
account of the purchase price of said
real property, and as agent for de
fendant signed and delivered to them
a receipt for said $1,000.00 In words
and figures as follows:
Portland, Oregon, Dec. 15, 1906.
'Received from Frank C. Baker and
A. H. Maegley the sum of one thou
sand ($1,000.00) dollars, as part pay
ment, and as earnest of their intention
to purchase from Dr. George A.' Har
ker, the following real property:
'The north half of lot numbered six
(6), and south half of lot numbered
seven (7), In block numbered three
(3), to the City of Portland, being
fifty (50) feet frontage on First
street, and building thereon occupied
by Martin Furniture company. Sub
ject to an existing five-year lease of
the Martin Furniture company, at a
monthly rental of three hundred
($300) dollars, at the agreed price of
forty-five thousand dollars ($45,
000.00), to be paid as follows:
'Forty-four thousand dollars ($44,
000.00), remainder, to be paid In cash
on delivery of clear deed and abstract
of title. It is hereby agreed that In
case of failure of title, or from any
other cause, said land is not delivered
free of all Incumbrance by a good and
sufficient deed, the said above sum of
one thousand dollars ($1,000.00) Is to
be returned to said Frank C Baker
and A. H. Maegley. Fifteen days al
lowed to examine abstract of title.
'It Is hereby agreed that the pur
chaser is to pay all taxes or street
Improvements that may be levied
against said property after date of
delivery of deed. Purchaser failing
to make the payments above specified
the deposit money will be forfeited as
stipulated damages.
'GEORGE A. HARKER,
'By Charles K. Henry, Agent."
'Note. On completion of this sale
I am to pay to Maegley and Baker
five hundred dollars ($500.00) of my
commission to effect sale.
'C. K. HENRY'."
On the findings the court rendered
judgment for the plaintiff, and the
defendant appeals.
Burnett, J. As a preliminary mat
ter it is our judgment that the court
erred in allowing the plaintiff to tes
tify and In finding as a fact the con
struction the plaintiff put upon the
defendant's letter of November 8,
1906. Tnder the authority of Mahon
v. Rankin, 54 Ore. 32$; 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, hut 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 quesion
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 us
to determine whether the letters
quoted in the findings prove or con
stitute such a contract.
In the first letter the plaintiff states
that he has some prospective custom
ers for First street property and In
quires whether the defendant will sell
and. If so, upon what terms. The lat
ter might well construe this language
as the negotiation of a purchaser's
broker, and treat the ninlntiff m i,
agent of some undisclosed buyer. It
is tue plain import of plaintiff's lan
guage in the opening paragraph of
the communication.
It is true that the plnintiff states
further to the defendant that "If you
desire to place this property In my
hands for sale on the usual commis
sion basis, I will Kive It my Immediate
and prompt attention." The defendant
answered this letter giving his terms
as forty thousand ($40,000.00) dollars,
cash, which would be an apt and suf
ficient response to the purchaser's
broker. To the suggestion about put
ting the property into the plaintiff's
hands for sale on the usual commis
sion the defendant answered, In ef
fect, that they were not putting the
property on the market. This would
certainly seem to imply that he de
clined the offer of plaintiff to take
the property for sale. Indeed, the
plaintiff himself does not count upon
this as a Contract nf emnlnvmont tn
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 bv 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 de
cline to sell for $40,000.00 and stated
In his letter of October 30, "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
nxing a price at which he would sell
the property, but only as estbllshlng
a minimum below which ha u-nuM .,t
sell. Bearing in mind the allegations
ot tne complaint that the contract was
lmiiie in .November, so far as offer and
acceptance Is rnm-empH tha i.lunH
offer, which he claims was accepted,
must be found In his letter of Nov
5. 1906. In the following 1 :1 n 1 1 i era
Will you klndlv elvn ma
say thirty days in which to effect the
sale at the orlce nf Jio.oon.on' Wr,,,m
you want all cash, or just what pay
ments would suit you? Kindly let me
know at vour earliest
and I will be nlenseH tn ninka thamU
on the usual commission basis." The
aeienuants letter of November 8. In
response to the plaintiffs letter, last
quoted. Is a clear refusal
the terms offered. In addition to that
ne says. I am not particularly anxious
to sell but might consider a cash of
fer." This language cannot be con
strued Into an acceptance of plain
tiff's offer So as tn make n rnntrant
of employment between the parties.
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The thirty days would expire by the
terms of his -own letter-on December
5, 1906. It is elementary that ot con
stitute a contract based upon offer
and acceptance, the acceptance must
coincide with and be in the same
terms as the offer, otherwise the con
tract is not complete and all that
passes between the parties can be
deemed only as negotiation. 9 Cyc.
265; Clarke on Contracts, sec. 21. But
If we concede that the defendant ac
cepted 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 per
formed his part of the contract for
his earliest mention of finding a pur
chaser 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
iie cannot recover. Hardv v. S!ieedy
113 Pac. 1133.
There Is jet another obstacle to
prevent the plaintiff from recovering
in this action, even if his offer to
take the property to sell on commis
sion had been accepted so as to form
a contract. He alleges that he was
employed to find and procure a pur
chaser 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 com
mission from his employer. He must
furnish his principal a binding con
tract executed by an intending pur
chaser who Is able to buy and upon
whom, If he fails to buy, the principal
may have recourse; or the broker
must bv some means hrlnir the hiivoi-
and seller together or Into communi
cation witn each other so they may
themselves make the contract and
conclude the sale. York v. Nash, 42
Ore. 321, 330; 71 Pac. 59; Hardy v.
Sheedy, supra. It is not pretended
that the plaintiff secured from Baker
and Maegley any contract which the
defendant could enforce against them.
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 de
fendant. Hence there is nothing to
satisfy the first alternative allowed to
the agent in performing his contract
to procure a purchaser. 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 iiin.
tlty of the intending purchaser, for
under such circumstances tho nu-nnr
Is authorized to conclude that the
broker is himself speculating on the
property in violation of his dutj Hay
den v. Grillo, 35 Mo. App. 647; Baars
v. tiyianu. Minn. 150; Burnett v.
Edling. 19 Tex. Civ. App. 711; Gerding
v. Haskin, 141 N. Y. 514.
In the present case none of the cor
respondence. Which, according tr. tha
findings constitutes the entire nego
tiations, ontains anv Intimnttnn ht.
ever about the identity of the proposed
puicuasers, ana, ror all that appears,
they are unknown to the HefnHont
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 inrfnrmn
by the plaintiff had been waived bv
the defendant, a different case would
nave been presented. But having
pleaded full performance, the ninlntiff
is bound by Vie allegation as thus
cast, must prove It as laid and until
he discloses to the H
identity of the intending purchaser
eimer Dy a contract signed by the
buyer or brlneinc him
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.
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