Anonsuit; that the decision was erroneous in refusing to consider testimony as to the contents of a missing letter; and that the conclusion reached was contrary to earlier decisions of this court upon the same question under the statute of frauds. For the sake of greater clarity we here set down in full all the papers passing between the parties as disclosed by the record:

1.

"Nov. 25, 1913.

"Mr. Waite, Sutherlin, Oreg.-Dear Sir: We understand that you are the owner of a large tract of land at Round Prairie, and that the same has been submitted on the basis of $20 an acre. We believe that we are in a position to successfully submit this property and would same and giving us the very lowest cash price on the property, also stating what commissions you would pay in the event of sale; also stating whether you would consider good income city trade for part or all of the property. We have some clients interested in a proposition of this kind and your immediate attention to this will be highly appreciated as our parties are waiting for an answer from us. Thanking you for your immediate attention to this, we beg to remain, "Yours truly,

BURNETT, J. (concurring specially). mere defense is not as a rule available as ground for an original action. This characteristic distinguishes the second affirmative answer, and puts it in the classification of pure counterclaims, for without reference to whether the chattel mortgage was due or not or already paid, the defendant could have instituted an action at law to recover damages from the plaintiff for the fraud he had practiced upon her immediately upon her discovery thereof. She thus had a plain, speedy, and adequate remedy at law, ousting the equity side of the court of jurisdiction, as taught by section 389, L. O. L., and citations in the appended note. By alleging a return or refused offer to return what she had re-like to have your authorization to submit the ceived in the transaction, she might have used the fraud as an element in the statement of a cause of suit to rescind the contract by which she became the owner of the bakery, to cancel the notes and mortgage, and to restore to her what she had paid. Again, if she had added to her present statement an averment that the plaintiff is insolvent, so that a claim for damages could not be collected from him, she would have had a good answer under section 401, L. O. L. In both cases the matter would have been of equitable cognizance, and in the first an original suit could have been maintained. If the question were res integra, the writer would dissent from the conclusion reached by Mr. Justice McCAMANT on the ground that the answer does not state a counterclaim in equity; but as the court has decided it the other way in Hanna v. Hope, and Kreinbring v. Mathews, which he cites, and as the rule seems to be confined to purchase-money mortgages, I concur on the ground of stare decisis.

(87 Or. 488)

"Great Western Land Co., Inc.,
"By
President."
2.

As shown by the oral testimony to which allusion has been made, all that the missing letter amounted to was a request from the plaintiff to Waite asking for an answer to the letter above quoted, dated November 25, 1913.

3.

"December 18, 1913. "Great Western Land Co., Eugene, OregonGentlemen: Your favor of December first at that, if you have a purchaser for my Round hand and, in answer to the same, beg to state Prairie tract of land, consisting of thirty-five hundred eight-two (3582) acres, I will make the price fifteen dollars ($15) per acre net to me. This is a bed rock price and will only be offered at that price for a short time. If, in case you have an interested party. I will give you a reasonable time in which to close the deal, but would not care to give any extended option at this time. This place sold for fifty-four

GREAT WESTERN LAND CO. v. WAITE.
(Supreme Court of Oregon. Feb. 26, 1918.)
BROKERS 43(3) CONTRACT OF EMPLOY-thousand ($54000) six years ago, and since that
MENT STATUTE OF FRAUDS.

Correspondence held not to show a contract of employment of plaintiff by defendant as his broker to sell land, within L. O. L. § 808, requiring a written memorandum of such contract, expressing the consideration.

Department 1. Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge.

On petition for rehearing. Overruled. For former opinion, see 168 Pac. 927. John K. Kollock, of Portland, for appellant. C. L. Reames, and Littlefield & Maguire, all of Portland, for respondent.

BURNETT, J. Protesting against the reversal of the judgment for the plaintiff in this case, with directions for the trial court to enter a judgment of nonsuit therein, the plaintiff has filed a petition for rehearing, contending that it was wrong to grant the

time, farm lands have more than doubled in
value in our county. My terms would be one-
half cash, and balance on three or five years'
time, at eight per cent. These terms might be
changed a little to suit purchaser, but any
amount left standing on the place would have
to bear eight per cent. interest.
"Very respectfully yours,

4.

F. B. Waite, "Sutherlin, Oregon."

"December 20, 1913.

"F. B. Waite, Sutherlin, Oregon-Dear Sir: thanking you for your kind offer, on the basis Replying to your favor of the 18th inst. and of which we are now endeavoring to negotiate a deal for your property, we will say that it is possible that our client may not be able to pay one-half cash at this time, but we believe that such a substantial payment will be made that the balances would be amply secured. We are co-operating with some other people in the matter of handling this deal and naturally will endeavor to make as much profit out of the transaction as possible, and will expect you to protect us in the matter of difference between the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 171 P.-13

The missing letter is negligible and the omission to consider testimony about it furnishes no ground for rehearing because it adds nothing to terms or conditions of the negotiation. The letter opening the correspondence on behalf of plaintiff properly may be construed as that of a buying broker approaching a landowner in the interest of the former's client. The plaintiff there informs the defendant that "we have some clients interested in a proposition of this kind," and the defendant was well within his rights in considering this as an overture by those clients acting through their own broker to begin negotiations for the purchase of the land in question. We note indeed that the plaintiff asks in that letter that the defendant state what commission he would pay in the event of a sale; but asking the question does not amount to a contract. It is not a case where silence gives consent. On the contrary, in the defendant's letter of December 18th we find him treating this correspondence of the plaintiff as a quest for an option. He gives the lowest price, without any intimation about commission, and after saying that the land will be offered at the price named only for a short time, he says: "I will give you a reasonable time in which to close the deal, but would not care to give any extended option at this time."

letter of December 20, 1913, the plaintiff fails to accept the condition imposed by the defendant for payment by the purchaser of half cash and balance on three or five years' time at 8 per cent., saying:

"That it is possible that our client may not be able to pay one-half cash at this time, but we believe that such a substantial payment will be made that the balance would be amply secured."

Here also is an utter lack of acceptance of the offer of the defendant so as to correspond precisely therewith. The telegram from the defendant at Marshfield throws no light upon the subject. It merely locates him until further notice. Then come the instrument he signed at Sutherlin, January 6, 1914, and the telegram sent to him by the plaintiff from Eugene on the same day. The testimony does not disclose which one of these papers was first in point of time. However, if the telegram preceded the "protect” paper, the latter instrument does not show any assent to the terms of the former whatever they are. If the "protect" paper was first, then the telegram was an effort to add another condition to which no subsequent assent is shown, thus leaving the negotiation open with the result that there was no contract for want of final acceptance of the additional terms proposed.

Remembering that the statute says, "Evidence, therefore, of the agreement shall not be received other than the writing or secondary evidence of its contents," it becomes our duty to construe the quoted documents and determine whether in effect they amount to a contract of hiring as alleged in the complaint. The rule is as stated by Mr. Justice McBride in Henry v. Harker, 61 Or. 276, 290, 122 Pac. 298, 299:

"But when, as in this case, the contract consists wholly of a writing or series of writings all admitted to be genuine, and containing no technical terms, the construction of the writings becomes a matter of pure law for the court. Hutchison v. Bowler, 5 M. & W. 535; Goddard v. Foster, 17 Wall. 123 [21 L. Ed. 589]."

Looking at the whole case made by the correspondence to which the statute restricts us as a matter of evidence, there is no situation disclosed where one party makes a distinct proposition to the other which is unmistakably and precisely accepted by the latter in the exact terms in which it was offered. Moreover, as we have shown, the plaintiff approached the defendant in the character of a buying broker and agent acting and proposing to act for another party not disclosed. There is nothing in the writings on either side showing that the defendant ever assented to any change of front on the part of the plaintiff. The writing of January 6, 1914, signed by the defendant at Sutherlin, is consistent only with the rôle assumed by the plaintiff of representing some one other than the defendant. It may be likened to the teleThus far we have no acceptance by the grams involved in the case of Beymer Bauplaintiff of whatever offer may be framed man Lead Co. v. Haynes, 81 Me. 27, 16 Atl.

a wholesale dealer in paint materials, and is void. Moreover, the opinion in the case was represented by traveling salesmen. The does not teach the doctrine ascribed to it. defendants were retailers, and telegraphed It was a case where the plaintiff averred the plaintiff thus: "Will you protect and that he had loaned to the defendant a sum guarantee us on lead until your agent gets of money to be repaid in three years, with here? We are offered inducements." The interest, and that, as evidence of the loan, plaintiff answered: "Yes." The court, con- the defendant had caused his demented son struing the word "protect," said: "We are to execute a promissory note for the land satisfied that the meaning of the expression secured by mortgage on land to which he was that the plaintiffs would sell as low as had no title. The defendant himself signed the most favorable market price at the time." no paper. Under these circumstances, on In the light of that precedent the writing discovering the true condition of affairs, the under immediate consideration is properly construed only as an agreement by Waite not to sell the land for less than $16.50 per acre, leaving the plaintiff to get as much as it could from its own client, the expected purchaser. The telegrams in the Maine case were not set down as an agreement to pay money, but were held to be a stipulation to maintain minimum prices on lead. That is all Waite did in the present instance, granting that the writing he signed otherwise expresses a valid contract. Under that instrument the plaintiff could have quoted any price it chose to its principal subject to the minimum prescribed by its terms. It does not in any sense constitute an agreement by Waite to pay money nor a hiring of the plaintiff by the defendant, and yet hiring is what the plaintiff relies upon in its complaint.

plaintiff brought the action as for money had and received seeking to charge the defendant directly for repayment of the money. On behalf of Wade it was urged that the agreement mentioned was void so far as he was concerned because it was within the statute of frauds making void under its provisions "an agreement that by its terms is not to be performed within a year from the making thereof." So far as the statute of frauds is concerned the opinion of Mr. Justice Slater adopted the argument of Mr. Chief Justice Dixon in McClellan v. Sanford, 26 Wis. 595, reaching the conclusion that the doctrine of the cases is that the provision of the statute now being considered applies to contracts not to be performed on either side within the year, and that as the plaintiff Bowman had performed his part of the contract completeAgain, in all this correspondence there is ly within the year by advancing the money, nothing expressing anything paid or prom- the statute did not apply. Even this conised or a condition to be performed by the struction was limited to cases where the stipplaintiff which induced the defendant to actulation sought to be enforced related solely or to sign any writing. We might almost to the payment of a money consideration. take judicial notice that a real estate bro- Beyond all this also the court seems to ker is always on the lookout for a commis- have placed its decision upon the ground sion from whatever source it may come. On "that if it were held to be within the statthe other hand, it is equally certain that the ute, he [the plaintiff] may recover not upon owner of land usually declines to pay a com- the contract, but for money had and remission unless he has promised to do so. To ceived, if the complaint be so framed; this is that end the statute was framed requiring undoubtedly held by many authorities" (citthe agreement to be reduced to writing ex-ing them). That is to say, the fact that the pressing the consideration and subscribed by the party to be charged. Giving to all these writings their utmost scope as in effect one instrument, there is no language in any of them amounting to an expression of the consideration even by "necessary implication as some of the courts have put it." Even the "commission" mentioned in plaintiff's telegram of January 6, 1914, may be the compensation to be paid by the purchaser who was the client of the plaintiff as stated in its letter beginning the correspondence. Going to the limit of construction favorable to the plaintiff in the direction of implication, it cannot be "necessarily implied" that the commission mentioned was to be paid by the defendant..

plaintiff advanced money to the defendant may be shown and for the purpose of negativing the idea that it was made to liquidate any obligation which the payor owed the payee, or that it was intended as a gift, evidence of the void agreement may be received. In any event, the Bowman-Wade Case is not apropos here because it is confined to cases where there is an effort on the part of the plaintiff to recover an actual payment of money, and the principle is restricted to the recovery of cash considerations already paid. The distinguishing characteristic of that precedent in that respect is wanting here, for it is not pretended that any money passed between the parties to the present case.

In brief, if we view the writings as an inIn the petition for rehearing the plaintiff stance of contract by offer and acceptance, has cited Bowman v. Wade, 54 Or. 347, 103 there is no situation disclosed where one Pac. 72, claiming that the decision therein party accepts precisely and exactly the offer leads to the conclusion that a contract not of the other without proposing new terms. measuring up to the statute of frauds is not Further, the plaintiff having assumed the atalways utterly void. The statute, however, titude of a buying broker seeking for an opsays in direct terms that such an agreement |tion it has shown nothing indicating a change

of front, and this does not prove the allega-, § 371; 20 Cyc. 258. And the writing or writtion that the defendant hired the plaintiff; ings relied upon by the plaintiff must tend to and, finally, there is no language in any of the writings, taken all together, which expresses anything to be done, promised, or performed by the plaintiff which would serve as an inducement or consideration sufficient to satisfy the statute and charge the defendant.

The petition for rehearing is overruled.

prove and not disprove the existence of an agreement between the parties authorizing or employing the Great Western Land Company to sell Waite's land for him for a commission. Browne on St. of Frauds (5th Ed.) § 371a; Catterlin v. Bush, 39 Or. 496, 501, 59 Pac. 706, 65 Pac. 1064. Giving the writings signed by the plaintiff a meaning most favorable to the plaintiff, and then examining the writings

MCBRIDE, C. J., and McCAMANT, J., con- signed by the defendant, it cannot be said

cur.

that the parties at any time made an agreement authorizing or employing the plaintiff HARRIS, J. (concurring specially). The to sell the land for a commission or compenwritings suggest that the Great Western sation to be paid by Waite. The defendant Land Company might have occupied any one is the party to be charged, and the essential of three possible positions: (1) As a purchas- terms of the agreement must be in writing ing broker for its "client" H. E. Doering; (2) signed by him; and while it is true that the as an optionee, if such a term is permissible, statute is satisfied by letters and telegrams, holding an option with a limitation upon the it is also true that the requirements of the price to be quoted by him; or (3) as a sell-statute are not fulfilled if the letters and teleing broker for Waite. If Waite did no more grams amount to nothing more than offers than to offer to deal with the plaintiff as a and unaccepted counter offers. purchasing broker or as an optionee, it would avail the Great Western Land Company nothing if it did not accept such offer. If the plaintiff offered to deal with Waite as his selling broker that offer could not benefit the plaintiff if Waite did not accept it. The complaint alleges that the plaintiff was authorized and employed to act as a selling broker for Waite, and hence by its pleading the plaintiff admits that it did not accept any offer that Waite may have made to deal with the plaintiff as a purchasing broker for its "clients," or as the holder of an option. If the plaintiff recovers at all it can only recover by showing that, as a result of an offer by one and an acceptance of that offer by the other, it was authorized and employed to act as a selling broker for Waite. If the writings signed by Waite disclose nothing but offers to treat with the plaintiff as a purchasing broker for its "clients" or as the holder of an option, the plaintiff cannot prevail, for Waite is "the party to be charged." Looking at the writings signed by Waite it will be seen that every instrument signed by him proceeds upon the theory that he is dealing with or of fering to deal with the Great Western Land Company as a purchasing broker for its "clients" or as the holder of an option. Waite never at any time agreed to pay a commission. The first letter written by him speaks of an option, and the "protect" letter of January 6, 1914, makes it clear, especially when construed in connection with the plaintiff's letter of December 20, 1913, that he did not consider that he was dealing with the plaintiff as his selling broker.

It must be remembered that the plaintiff must produce a writing or writings containing the essential terms of the contract expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the

The promise sued upon is the alleged promise of Waite to pay a commission for finding a purchaser. It is not claimed that the plaintiff paid anything, or made any promise to Waite as a consideration for his alleged promise to pay a commission, and therefore the alleged service to be rendered by the plaintiff would be the consideration for the promise sued upon. Laying aside any question concerning the expression of the consideration and viewing the service to be performed by the broker solely as one of the essential elements of the contract, it must, of course, like the other essential elements of the contract, be stated in the writing with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties; and if the service to be performed were so stated it would probably be sufficiently expressed to satisfy the statute when viewed as the consideration for the promise sued upon, for it would be difficult to conceive of a writing which would not either in terms or by necessary implication show the consideration for the promise to pay a commission where the service to be performed by the broker is the consideration for the promise of the owner and the writing contains all the essentials of an agreement authorizing a broker to sell land for a commission. The obstacle confronting the plaintiff in the instant case is that the writings do not disclose an agreement by Waite to pay the plaintiff a commission if the latter found a purchaser. If the writings did reveal such an agreement they would probably contain an expression of the consideration, assuming that the service of the broker constituted the consideration, for it is everywhere held, including jurisdictions having statutes requiring the consideration to be expressed, that the consideration is sufficiently expressed if it is "expressly express

Company's Second addition to Marshfield. A deed in their favor was executed December 1, 1892. They held the property as tenants in common. Webster's interest in the property

The petition for a rehearing should be de- immediately became subject to a number of

A mortgage given as security for an accommodation "note to F. and B," whereas the note was in favor of W. O., executed at the F. and B. bank, evidencing a loan made through the good offices of the bank, could be reformed in a foreclosure against the accommodated party. 5. TENANCY IN COMMON 19(4)-MORTGAGE granddaughter. They, with Annie Webster, BY ONE TO ANOTHER-WHO MAY PURCHASE AT FORECLOSURE. Where a tenant in common mortgages his interest to another tenant in common, the latter can buy at a foreclosure sale. 6. TENANCY IN COMMON 19(3) — BUYING