Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-29

spondents, v. NJ. c. Griswold, appel
liant Appeal from the circuit court
for Multnomah county Hon. r. G..
Morrow, judge. Argued and submit
ted October 10, 1911. John NJ. Gearin
and Richard W. Montague (Dolph,
Mallory, Simon & Gearin on brief)
for appellant H. G. Platt (Platt &
Plat on brief) for respondents Bean,
]. Reversed and remanded.
This is an action for S10,50T.4S, conf
mission for the purchase of timber
lands. From a judgment in favor of
plaintiffs, defendant appeals.
The complaint alleges in substance
the co-partnership of plaintiffs; that |
defendant employed them as brokers
to purchase certain timber lands, and
that they were instrumental in OBJ /
tanning an option for defendant to
purchase certain tracts of land in
Lane county, Oregon, at S25.00 per
acre for S405.96 acres aggregating
$210, 1850; that 1t was agreed that
the sum of $4,000 should be added
to the purchase price, and that de-
| fendant with his associates should
purchase the property at such en-
hanced price, one-thlrd of the amount
added, to be paid to plaintiffs as their
compensation for services rendered;
that defendant agreed to pay plaintiffs
all commissions accruing from the
purchase of said lands; that, without
4 the knowledge or consent of plaintiffs,
defendant abandoned the purchase Of
these lands by himself and associates
for the sum of $2S5, 1880, and there
| after exercised said option, causing
the lands to be conveyed to the Sc
curity Savings and Trust company or
Portland, Oregon, and the sum of
$210,149.50 to be paid therefor; that
plaintiffs services were the primary,
efficient and procuring cause Of said
contract of option and purchase, at the
request of defendant; that the usual
and customary commission upon the
purchase of timber lands was five
(5) per cent of the purchase price;
that plaintiffs performed all the con-
dition and covenants in the premises,
and by reason thereof, defendant be-
came indebted to plaintiffs in the sum
, of S1O,5074S.
Defendant answered denying the
complaint, with some exceptions, and
alleging affirmatively in effect, that
he first learned of the tract of land
mentioned in the complaint, from
Sherman & Harmon; that 1t was
agreed between the three parties
. Sherman & Harmon, plaintiffs and
!, defendant, that the latter should Sc
,, cure the option and the parties en-
. deavor to sell the land all expenses
= and profits to be shared equally; that
. the parties tried to negotiate for the
= = sale of the land, but failed; that plain
y tiffs promised to assist in cruising the
= land, as the terms of the option re-
y quired but neglected to do so unit
y within one day of the expiration o.
= the time therefor, and then refusing
=, to bear any Of the necessary expense
involved, or to have any part In The
y matter, withdrew from the agreement
"a advising defendant to that effect; tina
:, plaintiffs were thereby released from
- any further obligations under, or con
y nection with, said agreement Defen
= dant states that he, with Sherman
" Harmon, carried out the terms OF thu
y agreement and cruised the land, bu
20 being unable to find customer, HI
:. with his associates exercised the op
= tion, in part, in their own behalf ant
a caused the title to be taken by tn
~ Security Savings and Trust company
, that negotiations had not been com
- :, pleted as to part of the lands; tha
~ he offered to return to plaintiffs tn
20 sum of $4,000 advanced for expense
!. incurred
!, Plaintiffs replied denying the ma
y terial allegations OF the answer In 81
~ ~ far as they differed from those in tn
u complaint. The cause was tried be
., fore a jury Thereupon counsel 10
~ plaintiffs, in his opening statemen
~ ~ and in the progress Of the trial, state
~ that the action was brought to re
~ cover the reasonable value Of plain
w. tiffs services to which they were en-
e. titled, by reason Of the refusal Of tn
VI defendant to carry out his part OF a
u express contract between the partie
u Plaintiffs introduced evidence tent
ing to show that they brought th
~ tract of timber to the notice OF d.
! fendant, and by virtue thereof tn
~ latter was enabled to secure an optic
~ and purchased the same. The RET
u sonable commission for the purchaf
- Of timber lands was five 60 per cen
-. : and further an express contract fc
" their employment and compensate
:. in the matter had been made betwee
~. themselves and defendant.
~ f. c. Whitten, one Of the plaintiff
~ nDh testified to the effect, that defendal
% Grlswold made the following prop
- sition, that If they would secure Il
% on tract of timber, he thought he was
~ position together with his assOci
oe, ates to purchase the same In refe
~ ence to their commission, Grswo
.le said that he expected to be able
NJ get from his associates an adyan
~ price of somewhere from fifty to Sc
lrt enty-fiye thousand dollars, and as
on would take but a small part Of u
T.. land. he felt as though he ought
f., 10 have a part Of the commission, al
10 proDosed to keep one-third OF the COZ
mission himself, pay Sherman q Ha
mon one-third, and Whitten K Brya
. remaining third That was agre
upon between them. Grlswold su
gested that he put It up to his ass