Hardy v. Sheedy

113 P. 1133, 58 Or. 195, 1911 Ore. LEXIS 39

• Court: Oregon Supreme Court
• Decided: March 14, 1911
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Eakin.

Conceding that, by the terms of the contract, plaintiff had until and including the 17th of August, 1908, to produce a purchaser for the property, the question is: Did he do so? He did not bring the proposed purchaser, Clock, to defendants, or give them an opportunity to close a contract with him. He only gave them notice that he had a purchaser. He had no contract with Clock; nor did Clock offer to purchase. It is not' contended that he was ready to purchase, or to bind himself to do so; but, on the contrary, plaintiff desired an extension of time, to enable Clock to determine whether or not he would purchase. Therefore plaintiff did not produce a purchaser, within the life of the contract, willing to buy.

It seems that defendants were anxious to terminate the contract with plaintiff. Whether they would have declined to perform if plaintiff had brought a purchaser willing to buy is immaterial here. To entitle plaintiff to recover a commission, he must have complied fully .with the terms of the contract by a binding contract with Clock, or by producing to defendants a purchaser ready to purchase. This was not done. The language in Booth v. Moody, 30 Or. 222, 224 (46 Pac. 884, 885) Is:

“The rule unquestionably is that, before a real estate broker can recover his commissions, he must allege and prove either that he was the procuring cause of an actual sale, or that he produced a purchaser ready, able, and willing to purchase upon the terms named by the vendor.”

The same language is used in Holbrook v. Investment Co. 30 Or. 259, 265 (47 Pac. 920), also in Kyle v. Rippey, 20 Or. 446 (26 Pac. 308).

The indentical question involved here was decided in Watson v. Brooks, 11 Or. 271, 273, in which it was held that time was of the essence of the contract, and that a reasonable time after the expiration of the contract for the examination of the title could not be implied, it is said:

“The appellants were bound to have produced a purchaser not only able, but willing, to consummate the purchase, within the stipulated time.”

To the same effect are 19 Cyc. 254; Castner v. Richardson, 18 Colo. 496 (33 Pac. 163); and note to Lunney v. Healey, 44 L. R. A. 608. And in York v. Nash, 42 Or. 32, 330 (71 Pac. 59) it is said:

“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.”

The plaintiff in this case did neither; at most, the letter was an offer to produce a purchaser if defendants would extend the time of the contract. The purchaser must have accepted the terms of the offer within the life of the contract: Davis v. Brigham, 56 Or. 41 (107 Pac. 961).

Therefore the nonsuit should have been allowed.

The judgment is reversed, and the cause remanded.

Reversed.