Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-25

The thirty days would expire by the
terms of his own letter on December
., 1906 1t is elementary that OF con-
stitute a contract based upon offer
and acceptance, the acceptance must
coincide with and be in the same
terms as the offer, otherwise the con-
tract is not complete and all that
passes between the parties can be
deemed only as negotiation. 8 Cyc.
265; Clarke on Contracts, sec, 21. But
if we concede that the defendant ac-
cepted the offer of November 5, 1906,
made by the plaintiff, including the
terms of thirty days in which to effect
the sale at the price named, what is
the result? The plaintiff has not per-
formed his part of the contract for
his earliest mention of finding a pur-
chaser at any price is in his telegram
of December IA, 1906.
The plaintiff is bound by the terms
Of his own offer, and not having found
a purchaser within the time stipulated
ne cannot recover. Hardy V. Sheedy,
113 Pac. 1888
There is yet another obstacle to
prevent the plaintiff from recovering
in this action, even if his offer to
take the property to sell on commits |
sion had been accepted so as to form
a contract. He alleges that he was
employed to find and procure a pur-
chaser and that he performed the
contract, all Of which is. denied and
so he is put upon the proof of his
allegation. In performance of such a
contract on his part, the sellers real |
estate broker must do one of two |
things before he can recover his COM
mission from his employer. He must |
furnish his principal a binding con-
tract executed by an intending pur-
chaser who is able to buy and upon |
whom, if he fails to buy, the principal
may have recourse or the broker |
must by some means bring the buyer |
and seller together or into communi- |
cation with each other so they may
themselves make the contract and |
conclude the sale. York V. Nash, AZ |
Ore. 321, $50; II Pac SO; Hardy " |
Sheedy, supra 1t is not pretended |
that the plaintiff secured from Baker !
and Maegley any contract which the |
defendant could enforce against them. |
The receipt Quoted in the eleventh |
finding of fact is not such a contract |
and 1t does not appear that even this |
receipt was ever exhibited to the de- |
fendant. Hence there is nothing to
satisfy the first alternative allowed to
the agent in performing his contract |
to procure purchaser The latter
alternative is not satisfied by the
agent informing his principal that he |
has sold the property or has found a
purchaser without disclosing the iden- |
tity of the intending purchaser. for /
under such circumstances the owner
is authorized to conclude that the |
broker is himself speculating on the
property in violation of his duty. Hay
den V. GrillO, S5 Mo. App 647 Baars |
v Hyland, 65 MINI. $50; Burnett V. |
Edling, 19 Tex Civ. App. I'll; Gerding
v. Haskin, 141 n. Y. 514.
In the present case none of the cor |
respondence, which, according to the
hndlngs constitutes the entire nego-
uations, ontains any intimation what
ever about the identity of the proposed
purchasers, and, for all that appears. I
they are unknown to the defendant
even to this day. 1t is possible that
If the complaint were drawn upon the
theory that the defendant had broken
the contract resulting in damage to
the plaintiff, or that full performance
by the plaintiff had been waived bv
the defendant, different case would
have been presented But having
pleaded full performance, the plaintiff
is bound by the allegation as thus
cast, must prove it as laid and until
he discloses to the defendant the
identity of the intending purchaser
either by a contract signed by the
buyer or bringing him to the notice
of the seller in some way, the agents
contract is not performed.
The Judgment of the court below is
reversed and the cause remanded for
further proceedings not inconsistent
with this opinion.