Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-29
OREGON SUPREME
COURT DECISIONS
CONTINUED from Page 81

I
matter was then dependent upon you
payment Of One-third Of the incidenta
expenses and you we're to secure one
third Of the profits; is that correct? /?
he answered, That was one part o
the contract" He further asserted
that the price as nearly as he coulC
figure, was about $4,000, and Girls
void said that he expected to be abb,
to sell the property at a price tha
would be from fifty to seventy-fiv,
thousand dollars above the $4,000
To the question What would have
become OF your commission If Mr.
Griswold had been unable to negotiate
sale at all"? he answered, "There
would have been no commission"
j. Z. Bryant testified, in part, as to
the commission that the sellers were
not to pay any part thereof, and that
the commission was to be added to
the purchase price and divided be-
tween Griswold, Sherman & Harmon,
and Whitten & Bryant. 1t was thought
that there was no doubt of getting
from fifty to seventy-five thousand
dollars above the cost To the uues-
ton, Yes, and in the beginning you
agreed to fifty or seventy-five thou
sand dollars to be added to the sale
prlce?" he answered, That was talked
OF as the commission that we thought
we could make"
The evidence introduced on the mart
OF defendant tended to show that the
agreement provided that they should
secure the option and a purchaser in
common, each bearing one-third of
the expenses and receiving one-third
OF the profits; that plaintiffs had re-
tused to perform the agreement and
mad expressly withdrawn therefrom.
Further evidence was introduced by
defendant which was not contradicted
tending to show that the total amount
OF the land for which the option was
obtained, did not exceed 7774.59 acres
and was purchased at $22.50 per acre
amounting to S174,92S27.
At the conclusion of the testimony
counsel for defendant moved the court
Tor a directed verdict, upon the
grounds that no sufficient contract of
employment had been proved, and that
plalntiffs had abandoned the cause of
acton stated in the complaint, which
motion was denied by the court and
an exception saved.
The defendant assigns as error tbe
instructions of the court to the iurv
IN substance as follows: that the ac-
uon was brought to recover an agreed
ana liked compensation; that it was
not an action to recover the reason
able value for such services, and that
the jury should disregard all the evil
uehce offered during the trial as to
the usual and customary commission
TO which instruction, an exception
was duly saved by defendant
Inc jury returned and requested the
court for information as follows. are
we, the jury, allowed to award the
plaintiff any other sum than one-tbirJ
Of fifty thousand dollars, or have we
-ne right to designate the amount the
should receive as a proper
enumeration? The court instructed
ne jury as follows: "As to your first
question, | instruct you that you NAV
lward the plaintiffs one-third of anv
sum from $4,000 to $4,000 that Won
nay tlna was to be added to the orig
nal price of about $210.O 900, IT, of
curse, you find that that was the
'greement made. You are not limited
o S5O'OOO, but you may find one-third
u any sum between $4,000 and $75.-
OO that you may find was the amount
# the load"
bean, j. The statement in the brief
II counsel for defendant that there
we're allegations in the complaint and
before the jury which would
ustain a finding that services had
cen rendered, and that there was no
peclfic or enforceable agreement as
the amount, thus emitting plain l
HIS TO recover on quantum meruit." |
1t unnecessary for this court {
D consider the motion of defendant /
Or directed verdict and brings MS I
the matter of the instruction as l
igned as error. r
Iaking the allegations in the COM /
lalnt as to the agreement for adding
the purchase price and dividing the r
mount that the price was to be en-
anced for their compensation, to- +
ether with the testimony of plain d
IFS themselves, it is clear that it c
as, according to their statement, a I
latter OF speculation, and it was ex- +
ected by the parties that they would L
able to sell the land for an en- q
anced price, and in that way realize II
leir compensation or commission for o
aking the deal. f;
The teStimnnv Of n1oiu4ies a.
lives clearly shows that, in so far n
fixed amount of commission is
'ncerned, 1t was conditional upon |
Ielr ability. after taking the option. A
make sale of the timber lands at a.
enhanced price, and as the agree u
ent for a fixed amount of compen- W
Itlon or commission was not sus- 81
lned by any evidence, but was renu- 9
ated by plaintiffs, they must re- fc
'Yer, If at all, upon a uuantum me- cl
IL; Gollnlck v. Marvin, Or. (de- NJ
ded Nov. IA, 1917 In other words. II
order for plaintiffs to recover on 81
express contract for a fixed COM So
'nsation under the pleadings and TT
ldenee, giving the plaintiffs the most OF
Norable view thereof, it would be ST
cessary for the plaintiffs to show te
at a sale of the land was made, or ~
uld have been made, at an enhanced pr
Ice over that named in the option al
II 1t be conceded that there were co
plicate statements of the same cause af
action, or statements of different an
ounds of recovery contained in the be
the defendant was entitled fe
,,Nt;or th..-r N'ANANANN" oo