Hebets v. Scott
This text of 152 F.2d 739 (Hebets v. Scott) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Appellant, a resident of Arizona, brought suit in the Superior Court in and for Mari-copa County, of that state, against appellee, a resident of California, alleging two causes of action:
First, that appellee employed appellant to obtain a purchaser for real estate that appellee owned in Maricopa County; that appellee agreed to pay appellant five per cent commission on the sale price; that a memorandum of such promise and agreement was in writing; that appellant negotiated a sale of appellee’s land under the terms of the agreement; that appellant performed all the conditions of the contract, and prayed for judgment in the sum of $5,400.
Second, that appellant had performed services for appellee at his request in the selling of said real estate for the sum of $108,000; that such services were reasonably worth $5,400.
The cause was removed to the District Court of the United States for the District of Arizona on the ground of diversity of citizenship of the parties; thereafter, ap-pellee answered denying the material allegations of the complaint.
Appellant relies on some forty-three letters, telegrams and other documents as evidencing the contract sued on. These letters, telegrams and documents were stipulated to contain all the writings by the parties relating to the transaction in question.
Appellee moved for summary judgment. The District Court entered judgment dismissing the action; hence, this appeal.
Counsel for appellee, taking his cue from the case of Henry v. Harker, 61 Or. 276, 118 P. 205, 122 P. 298, has paraphrased [740]*740tile extensive correspendence as a written conversation between the parties.
We think the so-called “written conversation of the parties” is a fair presentation of the effect of the correspondence. Appellant has not challenged, its correctness. We therefore adopt it.1
A contract binding under the statute of frauds may be gathered from the letters, writings and telegrams of the [741]*741parties, in the event they express the essential elements of a contract.2 However, our consideration of the correspondence relied on in this case, leads to the conclusion that the essential elements necessary to create the contract alleged are lacking. No valid reason appears therefrom which would justify appellant in concluding he had a definite authorization to sell. This is evidenced by the fact that at the time appellant had a deposit from and the signature of a prospective purchaser he submitted the contemplated purchase to the appellee merely in the form of an offer. It will be noted that appellee at no time made a definite commitment to sell for a given price. He left many of appellant’s urgent, persistent and oft repeated inquiries unanswered. Many of the answers made by appellee and relied upon by appellant as showing authorization to sell, such as, “You are the only broker who will be allowed to do anything on it,” and “You are the only firm who knows I would consider selling at all,” are merely statements of possible future intent. Such statements negative, rather than sustain, appellant’s contention that he was employed to secure a buyer. In the first reply appellee made to appellant he informs him as follows: “I am not trying to sell it,” and appellant answered that he fully appreciated appellee’s position. We are impressed with the fact that the relations of the parties amounted to no more than persistent urging on the one hand and indifference on the other.
Appellant cites the case of Curran v. Hubbard, 14 Cal.App. 733, 114 P. 81, as supporting his position. It fails to do so. In the Hubbard case, supra, the owner requested the broker to get 1dm an offer and the owner set a definite price. The action of appellee in this case is quite different in that he set no price. Appellant made the overtures; the appellee continued to reject, assuming a noncommittal attitude, leaving the door open, however, to the extent that if and when appellant should submit a proposition that was satisfactory he might then consider selling.
Appellant urges for the first time in this court the contention that the agreement between the parties was for appellant to obtain an offer for the property that would be acceptable to appellee and that he (appellant) performed such conditional agreement. Having first urged the matter here we decline to consider it.
Judgment affirmed.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
152 F.2d 739, 1945 U.S. App. LEXIS 2345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebets-v-scott-ca9-1945.