Farris v. Pendleton

284 P.2d 362, 281 P.2d 972, 204 Or. 530, 1955 Ore. LEXIS 252

• Court: Oregon Supreme Court
• Decided: April 13, 1955
• Status: Published

Opinions

PER CURIAM.

This is an action by plaintiffs, real estate brokers, to collect a real estate commission and attorneys’ fees from defendants. The case was tried to the court without a jury, resulting in a judgment of $7,000 for plaintiffs, together with $500 attorneys’ fees. Defendants appeal.

The plaintiffs, real estate brokers, pursuant to a listing agreement, brought the defendants and Joe A. Perry and wife together for the purpose of exchanging their respective properties. The defendants were the owners of the Ranchotel Motel in Newport and the Perrys were the owners of a theater in Philomath. Thereupon the defendants, the Perrys and plaintiffs entered into a written contract for the exchange of their properties. The agreement contained a provision that defendants would pay plaintiffs $2,000 as a commission and the Perrys would pay plaintiffs $5,000 as a commission for plaintiffs’ services in connection with the deal. The agreement contained a further provision that should either the defendants or the Perrys “fail to perform and carry out his part of this agreement, such party, so failing, shall pay all of the brokers’ commission below provided for, this promise being made directly for said brokers’ benefit,” including reasonable attorneys’ fees.

Plaintiffs allege that the exchange was not consummated on account of the failure of defendants to live up to the contract.

Defendants interposed two defenses. They first claim that plaintiffs drew up the contract between the parties providing therein that defendants were the owners in fee simple of the motel property and further providing that defendants would execute to the Perrys a warranty deed to the property, when in truth and in fact plaintiffs knew that defendants had only a contract title to the property. The court resolved the issue of fact in favor of plaintiffs, and this being an action at law we are not at liberty to disturb the court’s finding. California Trojan Powder Co. v. Wadhams & Co., 85 Or 307, 166 P 759, 762. In any event Perrys’ waiver of the requirement for a deed forecloses this defense.

Defendants further allege in their answer that they rescinded the aforementioned contract because of misrepresentations on the part of plaintiffs in respect to the income and expenses of the theater. There was a proper pleading and substantial evidence in the case warranting rescission. Plaintiffs argue that since defendants did not plead or offer evidence of scienter on the part of plaintiffs, their defense must fail. Where rescission is relied upon it is not necessary to plead or prove scienter. Schuler v. Humphrey, 198 Or 458, 257 P2d 865; Weiss and Hamilton v. Cumbert, 191 Or 119, 227 P2d 812, 228 P2d 800.

The court made no findings on the issue of misrepresentation although requested to do so by the defendants. Clearly this was error. Darling v. Miles, 57 Or 593, 111 P 702, 112 P 1084.

Reversed with instructions to grant a new trial.

Lenshe, Spiegel & Spiegel, Portland, for the petition. Weatherford S Thompson and Sam Kyle, Albany, contra.