State, Harris v., two cases (Okl. Cr. App.) 944 Thomas, Henrylyn Irr. Dist. v. (Colo.).. 980

630 Thomas v. Newmark Grain Co. (Cal. App.) 72 518 Thornton v. Hamilton (Idaho).

700

920 Titus v. Montesano (Wash.).

43

800

243

642

347 Ukase Inv. Co. v. Smith (Or.).....
609 Union Bank & Trust Co. v. Himmelbauer
713 (Mont.)

7

332

823

REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

THE

PACIFIC REPORTER

VOLUME 181

(92 Or. 360)

6. APPEAL AND ERROR 1011(1)-REVIEWCONFLICTING EVIDENCE.

Finding by the trial court is conclusive on appeal, where there was a sharp conflict in the

PUFFER v. BADLEY. (Supreme Court of Oregon. May 27, 1919.) 1. BROKERS 43(2)-COMPENSATION-AGREE- evidence. MENT STATUTE OF FRAUds.

L. O. L. § 808, as amended by Laws 1917, p. 786, declaring an agreement employing a broker to buy or sell real estate for compensation to be invalid unless in writing and subscribed by the party to be charged or his agent, describing the land and stating the commission to be paid, is satisfied by a written agreement so executed after the performance of the

services.

2. BROKERS ~8(2)—EMPLOYMENT-CONTRACT EVIDENCE OF AGENCY-ADMISSIBILITY.

7. ATTORNEY AND CLIENT 104-NOTICE TO ATTORNEY-IMPUTATION TO PRINCIPAL.

Knowledge of an attorney, who was only acting for plaintiff in passing upon the sufficiency of title to several properties, that a purchaser of land from plaintiff through defendant, a broker, had made a certain offer for the land, and that some of the properties received by plaintiff in part payment for her land actually belonged to the defendant, does not charge the plaintiff with constructive knowledge, where such attorney in every other detail was attor

TENDER-SUFFICIENCY.

A written agreement, to pay a broker a stat-ney for the purchaser. ed compensation for selling real estate, satisfying the statute of frauds and purporting on 8. BROKERS 36-ACCOUNTING BY BROKER— its face to have been made after the sale, was properly admitted in evidence to show the relationship of principal and agent in a suit for money had and received by such broker. 3. BROKERS 8(3)-EMPLOYMENT EVIDENCE OF AGENCY-SUFFICIENCY.

In an action to recover money received by defendant as plaintiff's agent in selling real estate, based upon defendant's alleged failure to disclose a true offer made by the purchaser for the land sold, evidence held sufficient to sustain finding that defendant was plaintiff's agent. 4. BROKERS 37-ACTION TO RECOVER MONEY RECEIVED EVIDENCE-VALUE OF CONSIDERATIONS RECEIVED FROM SALE.

Evidence as to the market value of lots conveyed to plaintiff by defendant as part of the purchase price for land sold by plaintiff to another through defendant as agent is admissible in action to recover the sum received by defendant in payment for such lots as part of an original cash offer for plaintiff's land, not disclosed by defendant to plaintiff, to show that plaintiff did not act capriciously in repudiating

the transaction.

5. APPEAL AND ERROR 1054(1)-HARMLESS ERROR-TRIAL WITHOUT A JURY-ADMISSION OF INCOMPETENT EVIDENCE.

In an action tried by a court without a jury, admission of irrelevant and incompetent testimony, objected to, is not prejudicial error, where no injury to the party objecting resulted therefrom.

The fact that, when a principal tendered her broker a deed to lots conveyed to her by him, and demanded payment of money retained by such broker from the proceeds of land sold by him for her, she made no mention of furniture included with a lot conveyed to her does not invalidate the rescission, where the broker

refused to rescind.

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein, Judge.

Action by Cora E. Puffer against O. V. Badley. From a judgment for plaintiff defendant appeals. Affirmed.

This is an action for money had and received by the defendant for the use of the plaintiff. The complaint is in the usual form, and the answer is a general denial. Upon stipulation the case was tried by the court without a jury. The evidence discloses the following facts: The plaintiff, a widow, was the owner of certain business property on Washington Street in Portland, upon which there was a mortgage for $13,000. The prop erty was assessed at $31,200. Being in finan cial straits, she was trying to sell this prop erty, and the defendant, learning this fact, informed J. R. Ellison of the fact, and the latter authorized defendant to offer plaintiff

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
181 P.-1

"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 subseizing or employing an agent or broker to sell quent to the taking effect of this act, authoror 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, amount of the commission or compensation to be and expresses with reasonable certainty the

$10,000 in cash, and his residence property | The portions of this statute which are to be at the corner of 37th and Morrison streets in considered in this connection, are as follows: Portland, which was valued at $5,000. Plaintiff insists that this offer was never disclosed to her, but that defendant told her that Ellison was willing to pay her $4,000 in cash and convey to her the residence property mentioned, and certain other lots, which in fact belonged to defendant. The latter offer was finally accepted by her, and when she conveyed her property to Ellison, she received the $4,000, in cash, less a commission of $750 which she paid to defendant, and some incidental expenses, and also received deeds to the properties already referred to. In one of the houses conveyed to her by defendant, there was some furniture which was included in the conveyance. Thereafter, discovering that defendant had received $6,000 of the original cash offer, in payment for the lots which he had deeded to her, and that he had not disclosed to her the offer as made by El-paid such agent or broker, such agreement of lison, plaintiff tendered him a deed to such property and made a demand for the $6,000, which was refused, and she brought this action. At the conclusion of the trial, the court made findings of fact, and entered a judgment in favor of plaintiff, from which defendant appeals. The further facts will be found in the opinion.

BENSON, J. (after stating the facts as above). [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. V. 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. V. 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 1917, p. 786, which is the statute of frauds.

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, 26 L. R. A. (N. S.) 519, 19 Ann. Cas. 1180; Ide v. Stanton, 15 Vt. 685, 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 Expe ditionary 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