Richanbach v. Ruby , 135 Or. 117 ( 1930 )

This is an action by a real estate broker to recover commissions upon the alleged employment by defendant to negotiate a lease of certain property in Portland. This is a second appeal. A full statement of the record of the case is set forth in the opinion rendered upon the first appeal, vide, 127 Or. 612 (271 P. 600).

Because of the failure of the trial court to give a requested instruction upon the first trial, this court reversed the case and ordered a new trial. The requested instruction is as follows:

"There has been introduced in evidence, * * * a letter written by the defendant to plaintiff mentioning prices and terms relating to the transaction alleged in the complaint, * * *. I instruct you that this letter does not show that the defendant employed plaintiff as his agent and did not make the plaintiff the defendant's agent or broker to negotiate the transaction alleged in the complaint."

Upon the second trial in the court below, the above instruction was given; and then the court further instructed the jury as follows:

"The plaintiff Richanbach does not contend that this letter constituted his employment as agent or tends to prove that he was employed as agent, but claims that the alleged employment as agent and the alleged agreement to pay him commissions were in the form of a verbal agreement asserted by him, but denied by the defendant, to have been reached prior to the writing of the letter referred to."

To the giving of this instruction defendant excepted.

The plaintiff testified to the making of an oral agreement with defendant, and the defendant, in testifying, contradicted plaintiff's testimony in that regard.

Defendant also requested the following instruction, which was not given:

"You are instructed that if you believe from the evidence that the plaintiff, without being instructed so to do by Mr. Taylor, went to the defendant Mr. Ruby, and requested a return of the $1,000, that had been deposited by Mr. Taylor with Mr. Ruby, as earnest money or part payment to bind the bargain, and that the $1,000 was returned to Mr. Richanbach the plaintiff, because it was demanded by him, under the belief on the part of Mr. Ruby that the demand for the $1,000 made by Mr. Richanbach was made by him as the agent of Mr. Taylor, if such a demand was made, and the said $1,000 was accepted from Mr. Richanbach by Mr. Taylor, without any objection on the part of Mr. Taylor, then you would be justified in finding and believing that the negotiations between Taylor and Ruby had been abandoned with the advice, aid and consent of the plaintiff, and your verdict should be for the defendant."

To the failure of the court to give this requested instruction, the defendant excepted. From a verdict and a judgment based thereon in favor of plaintiff, defendant appeals. The appellant insists that the lower court erred in giving that part of the instruction which states, in effect, that plaintiff does not contend that the letter in question constituted his employment, but claims that the contract was verbal, which claim defendant denies. The giving of this instruction did not constitute error. It was applicable to the testimony given by the plaintiff and the defendant. It is the duty of the presiding judge to instruct the jury with respect to the theories of the parties defined by the pleadings and supported by substantial evidence: Schrunk v. Hawkins, 133 Or. 160 (289 P. 1073).

The case being based upon a cause of action in quantum meruit, it is claimed by defendant and appellant that the court committed error in admitting evidence of an express agreement to pay a definite commission. This is not tenable. No error was committed by the court in that regard: Sinnock v. Zimmerman,132 Or. 137 (284 P. 838); Inland Construction Co. v. City ofPendleton, 116 Or. 668 (242 P. 842).

The failure of the court to give the requested instruction of defendant, referring to the alleged legal effect of the return of the $1,000 earnest money deposited by Mr. Richanbach, is also urged as ground for reversal.

In the absence of a provision in the contract with the broker constituting the earnest money, or part of it, a fund from which the broker's commission is to be paid, the return of earnest money in itself does not relieve a party of his liability to a broker for commissions upon a sale which was not consummated because of the default of such party: Peavy v. Greer, 108 Minn. 212 (121 N.W. 875);Phelps v. Prusch, 83 Cal. 626 (23 P. 1111); O'Neil v. Printz,115 Mo. App. 215, 219 (91 S.W. 174).

The requested instruction fails to take account of the effect of the alleged default of the defendant. If defendant were unable to perform his part of the contract, before a finding that Taylor had abandoned such contract and that plaintiff had consented thereto would be justified, because of the acceptance of the return of the earnest money by Taylor, it would be necessary for the testimony to disclose that it was not on account of defendant's inability to perform that such earnest money was returned and accepted. It is true that, even though the consummation of the sale negotiated by the plaintiff was prevented by reason of defendant's default, nevertheless, plaintiff could have waived his right to commission. To warrant a finding that plaintiff waived his right to commissions, however, it would be necessary for the testimony to disclose an intention on the part of plaintiff to forego his claim to commissions; and representations or conduct, or both, manifesting that intention to defendant. The requested instruction omits reference to the possible effect of the alleged default on defendant's part, which it is claimed by plaintiff prevented the consummation of the sale, and also fails to state the law of waiver just outlined.

Finding no error, the case is affirmed.

ROSSMAN, J., did not participate.

COSHOW, C.J., RAND and BELT, JJ., concur.