Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-10
OREGON SUPREME COURT DECISIONS
Full Text Published BY Courtesy Of A. Turner RsPOIVFI Vi 'H
Supreme Court


TO have suggested it,
At the close Of plaintiffs evidence
defendant moved the court iOr
of nonsuit, which was de-
MED: and at the close Of the whole
testimony he moved the court to dl-
rect a verdict in his favor, which was
denied, and these two rulings are as
signed as error. As there was no
question involved on the motion Tor
nonsuit not raised by the motion Tor
a directed verdict, we will consider .
only the latter: Trickey V. Clarke .
30 Or. SIC; Dryden V. Pelton-Arm- .
strong Co. SO Or. AS.
Without determining whether Nor
rison had authority from Pelton to
sell the land. it is clear that he
thought he had, and he was endeay-
oring to sell the land to Collins, and
TO Sprague for the CrossetJ Timber
company. Immediately prior to the
18th of March Mr., Sprague testl-
fed, that he had talked with Morrl-
son about the PeltOn and the Sailing
lands both before and after the 18th
of March. He says: 81 think I saw
Mr.. Morrison nearly every day about
that time while We were closing the
deal" And although Sprague, on the
18th or 18th of March told Mr.. Frank
that he would take the land, he says
that nearly a week before the first
payment of $4,000 was made the
thing was in the balances I'VE had
some differences; I know I was very
much veXed at Mr.. Franck for lit
tie time" The thing fingered along
in an unsettled state for about a
week. Sprague and Franck both re-
ported their differences to Boothe.
Again Sprague says: mo, that after
noon (the 18th; but when Mr.
Franck saw me 1 had not bought it;
when | went over to Mr. BoOthes Of
flee it seems that Mr.. Franck-I
took it that he wanted to remove the
objections that we had had to the
closing Of the deal; he wanted to let
himself down a little easy, and so
did it through Mr. Boothe; that is
what 1 took it, and so | let it 60 at
that" His trouble with Mr.. Franck
was relating to the commission and
some other things.
This conflict of claims for the COM
appears to have been known
to Pelton as, before closing the sale
with Sprague for the Crossett TIM
Der company. he required from
Sprague indemnity against other
claims for commission than those on
the Franck option, so that there can
be no doubt that the sale could not
have been completed until there was
a determination of the manner of
dividing the commission, and on
March 10, Franck, Dobie (whO had
an interest in the commission for
himself and EDGAR and Boothe met
in the latter's office, Boothe acting
for Morrison, at which meeting-ac-
cording to the testimony of Boothe
and Dobie-it was agreed by all, in
cluding Franck, that the commission
should be divided among them as
follows: To Morrison, $25OO; to Do
bic & Edgar, $4,000; and to Franck,
S250O Franck denied that 10 agreed
thereto, but that was a question for
the jury, and they found against him
thereon.
At the time this controversy arose,
the terms of the sale were agreed
upon, and the dangers of the numer-
GUS claims to the $4,000 commission
was an obstacle in the way of clos
ing it, which was settled on Satur-
day, the 18th, and the sale effected
and the payment of the $4,000 made
on Monday, the 18th Therefore, the
only aid to be rendered by Morrison
in completing the sale or that was
necessary for that purpose was an
agreement as to the division of the
commission. which was thus a relin-
quishment by Morrison of any claim
on Pelton and Sprague for commits
sion. Boothe was to see Sprague
and tell him that they had recon-
ciled their differences as to the COM
mission, and for him to 90 ahead
and make the purchase through
Franck, who would collect the COM
mission and disburse it, On the same
day BOothe did see Sprague and told
him it was all arranged, and there
after the sale was made at once and
the commission paid on April 9 to
Franck. who paid DObie and Edgar
their $4,000 but refused to pav Nor
rison his share. This we think was a
sufficient consideration to support the
agreement sued on. It was practi-
cally surrender by Morrison of his
right to make the sale for himself to
Sprague or any other person. and
turthered the sale by Franck. There
fore, the motion for directed YER
dict was properly denied
Several exceptions were taken IN
the admission of evidence based
largely on the ground that there was
no consideration for the agreement
Ihe evidence of what Morrison had
done toward the sale. prior IN the
18th of March, was pertinent, NOT as
evidence of consideration for the
agreement sued on. but as tending to
show that he was negotiating Win
Sprague for sale, and might have
some claim to the commission. If a
sale should be made to him. The
same is true Of the question as to
me admission made by Pelton that
Morrison had authority to sell
Evidence as to the modification of
Erancks contract with Dobie and
Edgar from a one-third to a one
fourth OF the commission. when Nor
rison's claim was recognized, tended
10 corrohorate Dobie and Bootha
there being conflict in the evidence
The instructions requested bv de-
tendant are disposed of adversely ~
nlm oy what has ben said as to the
consideration of the contract.
We have examined the other ruI-
lnsS eomp2ined of and find no er-
ror. The Judgment is affirmed