Wallace v. McIntosh

LANGDON, P. J.

This is an appeal by the plaintiff from a judgment against him in an action brought to recover the sum of $5,000, commissions alleged to be due from the defendant to the plaintiff for the sale of certain leases of mining property in the state of Oregon.

The argument upon the appeal is that the evidence does not justify the judgment. An examination of the transcript on appeal discloses facts amply justifying the inference drawn by the trial court. The defendant was the owner of certain leases of mining property and on August 5, 1920, wrote to the plaintiff, stating: “In case you sell my option on Old Channel Mines for $30,000, I will pay you $5,000 commission for making sale—provided it is a cash sale—in other words, I want $25,000 cash for the lease and option. ’ ’ On the same date and practically at the same time defendant executed another agreement, which was prop

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erly construed by the trial court as inseparable from the first one quoted, which second agreement reads as follows: “This is to certify that I have an option and lease on what is known as the Old Channel Mines in Josephine County, Oregon—Lease to expire May 26th, 1924. Purchase price of property under my option $90,000—may be a few hundred more. I am now in possession of this property. I will take, $30,000 for my option and lease—to reimburse me for my outlay on the property. You can have fifteen days in which to examine said property and close the deal if you desire to purchase the lease.”

The trial court was justified, under the testimony appearing in the record, in construing, as it did, those two documents together as part of the same transaction. Such a construction limited the time in which plaintiff could earn the $5,000 commission to fifteen days. Support is lent to such a view of the actual contract between the parties by their subsequent dealings, evidence of which was presented to the trial court. Plaintiff brought a prospective purchaser to the property, but no sale was concluded during the fifteen days allowed for the same. Thereafter, on September 10, 1920, the plaintiff and defendant signed another agreement regarding the property by which, upon a consideration of $500 paid by the plaintiff, defendant granted to him an option to purchase the lease “for a period of ten days from date, with the further understanding that an additional sum of fourteen thousand five hundred dollars shall be paid to me on or before Sept. 20, 1920, and a further understanding that the sum of fifteen thousand dollars in addition to the above sum shall be paid to me on or before December 20, 1920, making a sum total of thirty thousand dollars for said lease. It is fully understood that if the payments are not made as stipulated above, then the option shall become void, and of no force and effect, and the sum of $500 above mentioned shall be forfeited. Time is the essence of this option. ’ ’