Perdew v. Davidson

199 P. 182, 101 Or. 78, 1921 Ore. LEXIS 145

• Court: Oregon Supreme Court
• Decided: June 28, 1921
• Status: Published

Opinion

JOHNS, J.

The printed form of the contract recites that the company shall have “sixty day exclusive and irrevocable right to make sale of property * * and any deal thereafter closed with party previously furnished to be in all things binding.” At the request of the defendant the addition was made and signed by both parties, “it being fully understood that above exclusive listing is given on above date to be in full force and effect for a term of sixty days •commencing date above written.” The court gave the following instructions:

1. “I instruct you, if you find from a preponderance of the evidence that the plaintiff R. L. Perdew furnished Homer Chase, Chester Chase and J. W. Chase within the sixty-day limit, that is, before the contract had expired, and the said Chases were able, ready and willing to purchase the property, although the- deal was not consummated until after the expiration of the sixty-day period, the plaintiff would be entitled to recover a verdict at your hands. That is to say, gentlemen of the jury, if within the sixty days, •during the life of the contract, the plaintiff Perdew furnished the Chases as the purchaser for this property, and if you find that after the sixty-day period that the deal was consummated, then the plaintiff would be entitled to recover a verdict at your hands. That is, if the plaintiff was the procuring cause of the deal between the defendant Davidson and the Chases.

2. “Of course, under the terms of the contract, he was bound to furnish a buyer, able, ready and willing within the sixty days. That is, the buyer must have been furnished within the sixty days, and if the contract was closed up after the sixty days plaintiff would be entitled to recover a verdict at your hands.

3. “If, gentlemen of the jury, you find from the evidence in the case, that the plaintiff was not the procuring cause of the deal between Davidson and the Chases, then I instruct you that the plaintiff would not be entitled to recover a verdict at your hands. That is to say, gentlemen of the jury, if you find that the plaintiff did not furnish the Chases as purchasers of this property, why then, of course the plaintiff would not be entitled to recover.

4. “I instruct you, gentlemen of the jury, that the burden of proof rests upon the plaintiff in this case to prove by a preponderance of the evidence that he furnished Homer Chase, Chester Chase and J. W. Chase within sixty days as purchasers for this property. That is for the property described in the contract. The burden of proof rests upon the plaintiff to show that he was the procuring cause of the deal between the defendant Davidson and Chases, and that he furnished the Chases within sixty days as purchasers.”

Error is assigned in the giving of this instruction:

‘‘ Of course, under the terms of the contract, he was bound to furnish a buyer able, ready and willing within the sixty days.”

It will be noted that this language is only a portion of instruction No. 2, above quoted and in which the court further says, “that is, the buyer must have been furnished within the sixty days, and if the contract was closed up after the sixty days plaintiff would be entitled to recover a verdict at your hands.” It was upon that theory that the court submitted the case to the jury. That is to say, if the plaintiff within the sixty days furnished a buyer for the land with whom the deal was consummated after the sixty days had expired, he would be entitled to a verdict.

1, 2. The addendum was made because the defendant objected to and would not sign the printed form contract. It must be assumed that he intended to limit rather than extend his liability, and the apparent purpose was to point out and emphasize the sixty-day limitation, as otherwise there is no material change. Its legal effect was to place a time limitation of sixty days within which the plaintiff should procure a purchaser with whom the deal was afterwards consummated, and the instructions fairly and squarely submitted that question to the jury which found for the defendant As we analyze the modified contract, before the plaintiff conld recover he must produce a purchaser within the sixty-day limitation, and if the deal is made with the purchaser so produced within a reasonable time after the expiration of the sixty days, plaintiff would then be entitled to his commission. Appellant further contends that there is no evidence to sustain the verdict. It will be noted that the contract was made November 1, 1919, and was for a period of sixty days, that the sale was made March 29, 1920, to J. W. Chase, the father, and his two sons, Chester and Homer, and that there were seven boys in the family. There is evidence tending to show that in reality the father made the deal; that upon January 12th, his oldest son Harry, who was then engaged in taking the census, saw and walked across the land and when he came home at night said, “That’s an awful good field for us fellows to rent, to work our tractor on,” and that it was in this manner that the land was first called to the attention of the purchasers. This was twelve days after the sixty-day limitation had expired. The evidence shows that Harry was not a party to the purchase and did not have anything to do with it. As a result of his report they sought to find the actual owner with a view of renting it. Although it is true that for the purpose or finding who was the owner, some of them called at plaintiff’s office and there learned that it was Davidson. After getting in touch with him they tried to rent it but failing in this the father and the two sons above named, later made the purchase and their testimony tends to show that the plaintiff was not the procuring cause and had nothing to do with the making of the deal. There is ample evidence to sustain the verdict. Judgment is affirmed. Affirmed.

Burnett, C. J., and Bean and Brown, JJ., concur.