Grindstaff v. Merchants' Investment & Trust Co.

122 P. 46, 61 Or. 310, 1912 Ore. LEXIS 63

Opinion

Opinion by

Mr. Chief Justice Eakin.

1. It has been frequently said by this court that a broker being employed as such has earned his commission when he has produced a purchaser ready, able, and willing to buy on the owner’s terms. If he does this and places the owner in a position to deal with the person he has induced to become the buyer, his contract is performed; but as said in York v. Nash, 42 Or. 321, 330 (71 Pac. 59, 62) :

“That a real estate broker finds a purchaser able, ready, and willing to purchase, upon the terms of the seller, is not enough, under the apparent weight of authority, to entitle him to his commission; but he must either obtain a binding agreement to purchase the property, or bring the parties together, so that his principal also finds a purchaser.”

2. And the question here is: Did plaintiffs fulfill these conditions, or was there sufficient evidence to require that question to be submitted to the jury? They did not induce Gordon to buy nor to accept the terms of the defendant. Neither did he finally accept of those terms as presented by plaintiffs. He eventually purchased by reason of additional inducements held out to him by Stearns. Therefore plaintiffs did not produce a purchaser ready and willing to purchase; nor bring together such a purchaser and the defendant, so that defendant found a purchaser. But plaintiffs contend that they had a prospective purchaser in Gordon, and that defendant colluded with Stearns to defeat plaintiffs’ efforts and through Stearns consummated a sale to plaintiffs’ customer, within the holding in Jennings v. Trummer, 52 Or. 149 (96 Pac. 874: 23 L. R. A. [N. S.] 164: 132 Am. St. Rep. 680) ; but the evidence does not bring the case within the principle there stated. Here defendant’s officers took no part in the negotiations and at no time talked to Gordon regarding the sale nor with Stearns, except without knowledge of the identity cf the customer, and after several refusals gave him four days’ exclusive option. Until Gordon had accepted the offer of the property, defendant did not know he was the customer, and remained neutral between the brokers and received for the lot $80,000. After May 1st defendant had refused to give any written option to sell or the exclusive agency to any one. It was ready to sell to the first one bringing a purchaser and held itself free to sell on its own initiative.

Grindstaff testifies that after May he had no written option, but endeavored to sell it just the same, but that defendant did not want to tie the property up to him. He said it was not going to give another option unless they had a prospective purchaser. The company wanted to be free to dispose of it as it pleased, but at any time they got a customer it was willing to give them time to sell; that it would not give any one an exclusive option unless he had a customer; that he did have an exclusive option for a few days when he had a customer from Tacoma, and he assumed that if he took a customer there that would pay $80,000 defendant would sell and pay his commission; that he took Gordon to defendant’s office to look at the lease and the party-wall agreement, but they had no dealings with Hoyt, nor any talk about Gordon’s ability to buy or intentions in that regard. No exclusive option pending the investigations was asked, and defendant was not charged with any duty nor put under obligations thereby to either Grindstaff or Gordon. So far as appears, there was no prospect of a sale by Grindstaff, nor any negotiations pending between him and Gordon. For a period of 10 days plaintiffs did nothing to forward the sale and had no communication with Gordon. Their negotiations had ceased on the 7th of July, and plaintiffs failed to prove a case sufficient to be submitted to the jury. The motion for a judgment of nonsuit should have been allowed.

The judgment is reversed, and the cause remanded.

Reversed.