Grace v. McDowell

Brokers—Commissions for Exchange—Basis of Commission—Value of Property Received. 1. If defendant agreed to pay plaintiff all money over $9,000 which defendant received for his land, from a purchaser procured by plaintiff, and to take suitable city property in payment thereof, the actual value of the city property received in exchange, and not the price placed thereon by defendant and the purchaser, should be taken in determining the amount of plaintiff’s compensation. Exchange of Property—Sale or Exchange. 2. If a price is fixed at which respective properties are to be exchanged, the transaction is a sale, but if no price is placed upon them, it is an exchange. Evidence—Parol evidence—Consideration of Deed. 3. As between the parties, the amount of the consideration expressed in a deed is only prima facie evidence of the consideration and the value of the property.

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Justice Bean. This is an action by J. H. Grace against R. S. McDowell to recover $4,025 as compensation for the sale of land. The cause was tried before a jury, and a verdict rendered in favor of plaintiff. From a judgment thereon, defendant appeals. According to the facts set forth in the complaint, plaintiff and defendant entered into an oral contract, some time during September, 1908, in Jackson County, Oregon, whereby it was agreed that if plaintiff would procure a purchaser willing to buy a certain 680 acres of defendant’s land in that county, defendant would pay all sums of money which the buyer should pay defendant therefor, over and above the sum of $9,000. It was further agreed as a part of the transaction that defendant would accept in payment for said 680 acres suitable property in Los Angeles, California. Plaintiff accepted the employment and agreed to endeavor to secure a purchaser. In November, 1908, plaintiff procured one Mary Fitz as purchaser for the tract of land, and thereupon defendant sold the tract to her for the sum of $13,100, and took in payment therefor certain Los Angeles property, which was then and there agreed upon between the said Mary Fitz and defendant to be worth the sum of $13,100, after deducting a mortgage thereon for $1,600. Defendant executed and delivered to Mary Fitz his deed of conveyance transferring said tract and reciting a consideration of $13,100, and accepted in payment therefor deeds of conveyance of said Los Angeles property executed and delivered to him. Defendant by his answer as his first defense, admits that a contract was made, but denies that he agreed to accept in payment for the 630 acres, any Los Angeles property or anything except $9,000 in money. He alleges that about November 1, 1908, at Los Angeles, California, plaintiff and defendant entered into an agreement whereby it was agreed to abrogate the first contract. Under the new compact plaintiff agreed to try and procure one Mary Fitz to exchange certain property for said 630 acres of land. Defendant, in turn, agreed to pay plaintiff a reasonable value for such services. The defendant asserts that these services were performed pursuant to said last-mentioned agreement and not otherwise, and that the value for such was $500 and no more. As a second separate defense, after admitting the matters contained in the first part of the answer, defendant denies that plaintiff produced a purchaser who was able and willing to pay defendant $13,100; or that it was agreed between defendant and Mrs. Fitz that the Los Angeles property, which he received for said 630 acres, was worth $13,100; or that the same should be taken as a payment of $13,100 upon the purchase price of said land. He alleges that plaintiff did procure said Mary Fitz to make an exchange of certain property owned by her, consisting of several distinct parcels in Los Angeles, for said 630 acres, and that the exchange was made; but that no price or value was agreed upon by Mary Fitz or defendant, as the price or value of either the land conveyed by him or the property conveyed by Mrs. Fitz; and that said transaction was merely an exchange of the land of the defendant for the property of Mary Fitz, the consideration of each conveyance being the conveyance made by the other; that the whole value of the property conveyed to defendant was $10,600, subject to a mortgage of $1,600; and that the only consideration for the transfer of said 630 acres by him to Mary Fitz was $9,000 and no more. In his reply plaintiff denies the allegation of the answer except as alleged in the complaint. Upon the trial, plaintiff testified substantiating the allegations of his complaint to the effect that the contract was made on the train in Jackson County, Oregon, in the presence of Mr. Dunning; that defendant plainly stated that he would take good Los Angeles or Santa Ana property in exchange for his tract, and said, “I will give you all over $9,000 and, further, “there would nothing please me better than to write you a check for $3,000, if you get me $12,000 on the property, for you will need it.” Plaintiff also testified that he produced a buyer for defendant’s tract of land, one Mary Fitz, to whom defendant sold the property, for which he received in payment certain Los Angeles real estate acceptable to him. Plaintiff stated that he was present at their negotiations ;.that the parties went and looked at the properties, first visiting the Central Avenue property which was put in at $5,000, subject to a mortgage of $1,000, to which McDowell said: “That’s all right;” that they next looked at the two-story house in which Mrs. Fitz lived, and the lot adjoining; that the same was put in at $5,000 clear, defendant saying, “that’s all right; that is good property, and the price is all right”; that they then went to Fifty-sixth Street where Mr. May and Victor Fitz had two places which were put in at $2,600, subject to a mortgage of $600, and adjoining that on the next lot, a four or five room cottage put in at $2,200, to all of which defendant said: “That’s all right. I will accept all this property.” Plaintiff further testified that he came to Oregon with Gilson Fitz, a son of Mrs. Fitz, and showed him the land; that further negotiations were had, and that after their return to Los Angeles the parties met and figured up the above-mentioned properties, not including a vacant lot examined on Fiftieth Street, and put the same in at the above-named figures aggregating $14,800, subject to mortgages of $1,600; that defendant said: “Why, Mrs. Fitz, you are not asking a fancy price for your property, and I will not for mine. I will give you my property for yours.” Other witnesses testified tending to corroborate the testimony of the plaintiff in regard to the original agreement, and as to many of the details of the transaction. D. G. Fitz, witness for plaintiff, to the question: “Did Mr. McDowell at that time acquiesce in these prices that were fixed by you?” answered: “He did not object to any of them anyhow.” On further examination this witness testified that the defendant offered to trade the land in Oregon for the Los Angeles property, if they would give a mortgage on the land in Oregon to offset the $1,600 mortgages. n Mary D. Fitz, testifying for plaintiff, said that the latter brought the defendant and her together; that to the question, “Did you buy this 630 acres from Mr. McDowell?” she answered, “Why, I exchanged it, of course.” And to the question, “What did you pay for it with?” answered: “I paid for it with our property in Los Angeles.” On cross-examination, she said that the properties in Los Angeles were accepted by defendant, and that it was agreed that the values above mentioned should attach to the same in the trade. Defendant McDowell testified in his own behalf as to the making of the contract with plaintiff in October, 1908, by which the latter was to receive for his services in making the sale all that he could get above $9,000 in cash. He stated that nothing was said in regard to an exchange; that when Mr. Grace afterwards presented the Fitz deal, he and the plaintiff went to see the different properties, together with Mr. Fitz, and that the latter told him what he asked for them, namely, the above-mentioned amounts; that after Mr. Fitz returned from Oregon the parties met and the contract was signed; that he never agreed to take any of the Los Angeles property at any particular price; and that the total market value of the .same, which he received, was $10,600, subject to a mortgage of $1,600, making a net worth of $9,000. The testimony of several real estate men in Los Angeles taken by deposition, was to the effect that the value of the Fitz property at that time was between $9,000 and $10,000. D. G. Fitz also stated in rebuttal that the prices named were the reasonable value of the California property.