Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-29
OREGON SUPREME
COURT DECISIONS
Henderson ', Lemke, MultnOmah Co.

Henderson V, Lemke, MultnOmah Go.
Decided December 19, 1911.
P. W. Henderson, appellant, V.
Henry Lemke and Agnes Lemke, re-
spondents. Appeal from Multnomah
County. Hon. John B. Cleland, Judge.
Argued and submitted Dec. 6, 1911.
E. S. j. McAllister (McAllister & Up
ton on brief for appellant. James
Cole (Cole & Cole and J. G. Wilson
on brief) for respondents. Mcbride,
j. Reversed and new trial ordered.
This is an action to recover COM
missions upon a real estate sale. The
complaint alleges, in substance, that
plaintiff is a real estate dealer in
Portland, Oregon; that at the date of
the alleged contract defendants we're
the owners of certain real estate which
is described in the complaint; that
on August 20, 1909, defendant Henry
Lemke, acting for himself and as the
duly authorized agent of Agnes Lem
ke, gave to plaintiff the exclusive
right to secure a purchaser for the
period of five days-the purchase
price of the property to be 100000;
and defendants agreed to. pay plain
tiff, as commissions for his service
in securing a purchaser, the sum Of
per cent on the first $4,000 and 21s
per cent on the balance of the pur-
chase price, which agreement is in
the following words and figures: 81
hereby agree to pay to P. W. Hem
derson a legal commission of per
cent on the first $4,000 and 2h per
cent on the balance, provided any
customer shall purchase my property
who has been shown the property by
P. w. Henderson at any time" Signed
III. Lemke."
That plaintiff produced a purchaser,
within the period, who was able, ready
and willing to purchase the property
on the terms of the sellers; that
thereby the commissions were earned
and became due and payable
There was denial of all the ma
terial facts stated and the case was
called for trial. On the trial defen-
dants objected to the introduction of
any testimony on the ground that the
complaint did not state facts suffi-
cient to constitute cause of action,
and after consideration the objection
was sustained The specific point to
defendants objection was that the
alleged contract was within the stat
ute of frauds and therefore void. That
portion of the statute pertaining to the
matter in issue is Sec. sos, L. o. L.,
and reads as follows: an the follow
ing cases the agreement is void un-
less the same or some note or men,
orandum thereof, expressing the con-
sideration, be in writing and sub
scribed by the party 10 be charged,
or by his lawfully authorized agent;
evidence, therefore, of the agreement
shall not be received other than the
writing, or secondary evidence Of its
contents in the cases prescribed by
law. 8. An agreement entered
into subsequent to the taking effect
of this act, authorizing or employing
an agent or broker to sell or purchase
real estate for compensation or com.
mission" Plaintiff appeals.
Mcbride, ]. We are of the opinion
that the contract is valid and not in
contravention to the statute of frauds.
1t amounted to an employment of the
plaintiff to show the property which
defendants owned, and practically
stipulated that If he did so and sale
in defendants terms followed that la
Dor, then defendants were to pay a
commission. Here the thing to be
done by plaintiff is to show the prop
erty If he does that he has paid his
price for the commission. 1t is the
consideration for the contract. 1t is
not necessary that the consideration
be stated in exact terms If it can be
made out clearly from the whole writ
ing. Straight V. Wight, 60 Minn. Sis;
Union Bank v. Coster, 8 N. Y. 6
Comstock), SO Am. Dec. $50; Barney
v. Forbes, 11S N. Y. $50; Laing v. Lee,
20 N. j. L. SS7 Marquand v. Hipper,
IL Wend. $50.
The objection that the contract is
void because it does not state the sum
which was to be paid for the prop
erty, is untenable. 1t was sufficient
If purchaser who had been shown
the property, presented himself and
was ready, able and willing to pur-
chase for any price that defendant
saw fit to ask The agreement does
not limit defendants to any specific
nrica. thav had q narfect right under