Atwood v. International Realty, Ltd.

Oregon Supreme Court

Atwood v. International Realty, Ltd.

514 P.2d 553, 266 Or. 595, 1973 Ore. LEXIS 392

CourtOregon Supreme Court

DecidedSeptember 27, 1973

StatusPublished

Cited by1 cases

This text of 514 P.2d 553 (Atwood v. International Realty, Ltd.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atwood v. International Realty, Ltd., 514 P.2d 553, 266 Or. 595, 1973 Ore. LEXIS 392 (Or. 1973).

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Opinion

O’CONNELL, C.J.

This is an action brought by a real estate salesman against International Realty, Ltd., a real estate broker, his employer, to recover commissions for services in obtaining listings for defendant. The trial court sitting without a jury found for plaintiff, and defendant International Realty, Ltd., appeals.

On appeal defendant’s principal argument is that because plaintiff concealed the fact that he was acquiring a part interest in the property being sold, plaintiff violated a fiduciary duty which rendered unenforceable defendant’s agreement to compensate plaintiff for his services.

This argument is made for the first time on appeal. However, defendant, relying upon Cullison v. Downing, 42 Or 377, 71 P 70 (1903), contends that the question of illegality may be raised for the first time on appeal. In the Cullison case the court made note of the fact that the illegality of the contract was “apparent from the plaintiff’s own case,” and it was clear that plaintiff knew that he was acting illegally at all times during his employment.

There is no similar record in the present case. Defendant’s brief contains the barest outline of the transactions alleged to be illegal. Prom this sparse statement of facts, it is impossible to determine precisely how plaintiff was involved in the transactions by which he received a part interest in the property. And there is no reference to the voluminous record which would enlighten us as to plaintiff’s involvement. If the issue had been raised at trial, it is quite possible that plaintiff could have adduced evidence showing that the acquisition of his interest in the property did not in any way violate his fiduciary duty to defendant.

[597]*597Under these circumstances, we refuse to consider defendant’s assertion of illegality at this stage in the judicial process.

Defendant makes two other arguments which are not worthy of consideration on appeal.

The judgment is affirmed.

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O’CONNELL, C.J.

This is an action brought by a real estate salesman against International Realty, Ltd., a real estate broker, his employer, to recover commissions for services in obtaining listings for defendant. The trial court sitting without a jury found for plaintiff, and defendant International Realty, Ltd., appeals.

On appeal defendant’s principal argument is that because plaintiff concealed the fact that he was acquiring a part interest in the property being sold, plaintiff violated a fiduciary duty which rendered unenforceable defendant’s agreement to compensate plaintiff for his services.

This argument is made for the first time on appeal. However, defendant, relying upon Cullison v. Downing, 42 Or 377, 71 P 70 (1903), contends that the question of illegality may be raised for the first time on appeal. In the Cullison case the court made note of the fact that the illegality of the contract was “apparent from the plaintiff’s own case,” and it was clear that plaintiff knew that he was acting illegally at all times during his employment.

There is no similar record in the present case. Defendant’s brief contains the barest outline of the transactions alleged to be illegal. Prom this sparse statement of facts, it is impossible to determine precisely how plaintiff was involved in the transactions by which he received a part interest in the property. And there is no reference to the voluminous record which would enlighten us as to plaintiff’s involvement. If the issue had been raised at trial, it is quite possible that plaintiff could have adduced evidence showing that the acquisition of his interest in the property did not in any way violate his fiduciary duty to defendant.

[597]*597Under these circumstances, we refuse to consider defendant’s assertion of illegality at this stage in the judicial process.

Defendant makes two other arguments which are not worthy of consideration on appeal.

The judgment is affirmed.

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Bluebook (online)

514 P.2d 553, 266 Or. 595, 1973 Ore. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwood-v-international-realty-ltd-or-1973.

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