Mattieligh v. Poe

356 P.2d 328, 57 Wash. 2d 203, 94 A.L.R. 2d 464, 1960 Wash. LEXIS 462

• Court: Washington Supreme Court
• Decided: October 27, 1960
• Docket: 35013
• Status: Published

Opinions

Foster, J.

Plaintiff below appeals from a judgment of dismissal. Appellant sued to recover a real-estate broker’s commission paid to respondent Poe. At the conclusion of appellant’s evidence, the court orally granted respondent’s motion to dismiss “on the ground that the evidence produced by the plaintiff was not sufficient to sustain his cause of action,” and the judgment recites that plaintiff’s case was dismissed because of the insufficiency of his evidence.

So circumstanced, the appellant’s evidence must be considered in the light most favorable to him; that is to say, his evidence must be accepted at its face value. He is entitled to every reasonable inference to be drawn therefrom. In re Youngkin’s Estate, 48 Wn. (2d) 432, 294 P. (2d) 426; O’Brien v. Schultz, 45 Wn. (2d) 769, 278 P. (2d) 322.

Appellant is an elderly foreign-born farmer, for many years employed as a garbage collector. He is unschooled, and has a very limited ability to read, write or speak the English language.

Respondent is a licensed real-estate broker. .

The appellant does not claim fraud; indeed, he specifically disclaims it. The appellant, in effect, charges malpractice by the respondent broker in the practice of his profession.

The appellant’s proof was that the contract prepared by respondent was at variance in many particulars with his instructions. When a broker undertakes to practice law, he is liable for negligence. It is immaterial whether the broker’s attempt to prepare a contract, such as had been authorized by his client, failed because of his ignorance, stupidity, incompetence, negligence or fraud. Biakanjd v. Irving, 49 Cal. (2d) 647, 320 P. (2d) 16, 65 A. L. R. (2d) 1358.² Latson v. Eaton (Okla.), 341 P. (2d) 247.

Upon discovery of such variance in the contract, appellant sued for a modification to conform with the terms to which he had agreed. The result was an agreed rescission of the sale.

If a real-estate broker fails to exercise reasonable care and skill, he is liable to his client for the damages resulting from such failure. Shaw v. Briggle, 193 Wash. 595, 76 P. (2d) 1011; Western Bakeries, Inc. v. John Davis & Co., 110 Wash. 463, 188 Pac. 406; Smith v. Fidelity & Columbia Trust Co., 227 Ky. 120, 12 S. W. (2d) 276, 62 A. L. R. 1353.

If the negligence, ignorance, stupidity, incompetence or fraud of a real-estate broker causes the rescission of a sale negotiated by him, one of the items of the principal’s damage is the commission paid. Langston v. Hoyt, 108 Kan. 245,194 Pac. 654; Crichton v. Halliburton & Moore, 154 Miss. 265, 122 So. 200; Harvey v. Cook, 24 Ill. App. 134; Fisher v. Dynes, 62 Ind. 348; 12 C. J. S. 164, § 73; 8 Am. Jur. 1067, 1068, § 142; annotation, 62 A. L. R. 1357, 1362.

The appellant made a prima jade case against his broker, the respondent. Consequently, respondent’s challenge to the sufficiency of appellant’s evidence should have been denied, and the complaint should not have been dismissed.

The judgment is reversed and a new trial granted.

Weaver, C. J., Hill, Donworth, and Roselllni, JJ., concur.

Finley, J. concurs in the result.

2 In a case note in 11 Vanderbilt L. Rev. 599, 602, to the opinion of the district court of appeal in Biakanja v. Irving (Cal. 1957), 310 P. (2d) 63, it is said:

“Persons who practice law without authority or engage in acts that may be construed as such practice, should take warning from this case, for they are acting at their peril. Absolute liability is placed on the unauthorized practitioner for any mistake that may be incorporated in his work, for no matter how deeply concealed the defect may lie his failure to draw an instrument validly, to the injury of anyone, is negligence per se. ... ”