Lundeen v. Ottis

SHAW, J.

The defendant appeals from the judgment and from an order denying a new trial.

The action is upon a written contract whereby Ottis agreed to pay Lundeen $2,933, as commission for his services in procuring one W. H. Graham to accept a written offer to Ottis to exchange certain parcels of land belonging to Ottis for certain other parcels belonging to Graham. The offer of Ottis described the respective lands, stated the terms of the proposed exchange, authorized Lundeen to negotiate the exchange as agent of Ottis, and concluded with the following provision: “And it is further agreed with said Lundeen that when he has secured an acceptance of the within proposition

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I will then pay the sum of two thousand nine hundred and thirty-three and no 100 dollars as commission for said services.” It was signed by both Ottis and Lundeen. On the following day Lundeen induced Graham to accept the offer and to sign a written statement, indorsed on said offer, accepting the proposal and agreeing to furnish an abstract of title within thirty days and thereupon to make and deliver a deed conveying to Ottis the title to his property.

The answer admitted the execution of the contract with Lundeen, contained in the written offer, and the acceptance of the offer by Graham. It further alleged that the offer was prepared by Lundeen, partly in print and partly in typewriting, that the “major portion” of the agreement to pay the commission was in print, that prior to signing the same Ottis had agreed to pay Lundeen a commission if the exchange were consummated; that at the time of signing the said document Lundeen handed to Ottis the written offer so prepared and stated to Ottis that he, Lundeen, would expect him, Ottis, to pay a commission only in the event that the exchange was consummated, and that, relying on this statement, Ottis signed the written offer containing said agreement for commissions. It was also alleged that Ottis, in pursuance of the accepted offer, put deeds conveying his property to Graham in escrow, to be delivered on performance by Graham of his part in the exchange, that Ottis was at all times ready and able to carry out his proposal, but that Graham neglected to perform and that, after waiting five months, Ottis demanded performance, which Graham refused, whereupon Ottis withdrew his deeds from escrow and the exchange was never made. The prayer of the answer was that the agreement with Lundeen for commissions be reformed by striking out the words “when he has secured an acceptance of the within proposition” and inserting instead thereof the words, “upon the consummation of said exchange,” and that plaintiff take nothing by his action.