Philomath College, 99 Or. 366, 193 Pac. 470, 195 Pac. 822; Ex parte Banks, 185 Ala. 275, 64 So. 74; Rickards v. Cunningham, 10 Neb. 417, 6 N. W. 475; Happ v. Ducey, 110 Neb. 429, 193 N. W. 918; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; 27 C. J. 307; Williston, Contr. § 530; Cooley, Torts, 3d ed. 949. It is to be noted that the cases are from states whose statutes provide that such agreements are void unless reduced to writing and signed by the party charged. Dung v. Parker, 52 N. Y. 494, is relied upon by appellant, but that case, in Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30, is distinguished and held not to be in conflict with the conclusion here here reached. There is ample proof that plaintiff had a contract as alleged, and we must here consider it as a valid and binding agreement. Of course, it could have no force or effect against Mesher if he saw fit to avail himself of the protection of the statute, but with that question we are not concerned.

We next come to the question: Did defendant by fraudulent means prevent plaintiff from performing his contract? In considering this phase of the case, it is important to bear in mind that plaintiff agreed to procure a purchaser who would buy the property for $21,000. Plaintiff avers that defendant bought the property for $20,000. It is not averred, nor is there evidence tending to show, that plaintiff ever procured a purchaser who was ready, able, and willing to pay $21,000. We take it, therefore, that plaintiff, at the time of defendant's alleged interference, had not earned his commission because he had not done what he had contracted to do. But plaintiff by reason thereof is not precluded from recovery. In Krigbaum v. Sbarbaro, 23 Cal. App. 427, 138 Pac. 364, the court said: "But the defendants contend that, in order to have stated a cause of action, the plaintiff must have disclosed by his complaint that, at the time the defendants are alleged to have interfered with said negotiations and

thus prevented the sale from being consummated through the instrumentality of the plaintiff, he had procured in said association a purchaser of said properties, ready, willing, and able to purchase the same for the amount and upon the terms prescribed by said committee. We do not agree with this contention. While we do not think that it may be inferred from the complaint that the plaintiff had, strictly speaking, procured a purchaser ready, willing, and able to purchase the properties, it is, as before stated, clear from the averments that he was, when interfered with by the defendants, conducting negotiations with a party ready, willing, and able to purchase, and that the only other step necessary to the procurement of such a purchaser was in concluding the negotiations-that is, in consummating or crystallizing the negotiations into an agreement. This, the complaint plainly states, would have been accomplished but for the wrongful acts of the defendants in preventing the committee

making the sale through the plaintiff, and herein lies the tort of the defendant from which the damage suffered by the plaintiff ensued."

It is true that plaintiff had not performed his contract, but the law does not does not permit the defendant wrongfully and fraudulently to interfere with his right of performance. As stated in Skene v. Carayanis, 103 Conn. 708, 131 Atl. 497, decided January 8, 1926: "The law does not, however, restrict its protection to rights resting upon completed contracts, but it also forbids unjustifiable interference with any man's right to pursue his lawful business or occupation, and to secure to himself the earnings of his industry. Full, fair, and free competition is necessary to the economic life of a community, but under its guise, no man can, by unlawful means, prevent another from obtaining the fruits of his labor."

Plaintiff could not recover upon the theory that defendant caused a breach of contract between him and

the owner, for the latter did only that which he had a legal right to do. Plaintiff, under his contract, was not given an exclusive right to sell the property. Neither could plaintiff recover if it is true, as defendant contends, that it was purchased for $21,105.44, for in such event the commission would have been earned, there would have been no interference by defendant, and plaintiff would be obliged, under such circumstances, to look to Mesher for compensation. It is important to bear in mind the theory upon which this action was brought, viz., that defendant prevented the plaintiff from procuring a purchaser who was ready, able, and willing to buy at the stipulated price of $21,000. If it be conceded that plaintiff's allegation that "defendant determined to buy said property and to pay therefor $21,000" is equivalent to an averment that he had procured a purchaser who was willing to buy for such price, we submit there is no evidence tending to establish such allegation. There is no proof whatever that defendant ever made an offer to plaintiff that he would pay $21,000 for the property in question. Nor is there any evidence that plaintiff would have been able to have procured such a purchaser. In what way then did defendant prevent the performance of plaintiff's contract? The most that can be contended is that defendant, through fraud, brought about the termination of a contract in which plaintiff was interested.

The facts in Skene v. Carayanis, supra, are very similar to the case under consideration. Skene had a contract with defendants to procure a purchaser for their land. She obtained an offer from O'Brien to pay $90,000, and the owners signified that they would accept it. She, however, was never able to consummate the deal with O'Brien, and finally the latter said he was no longer interested in the premises. Later, there appeared on the scene one Wolfson, who went directly to the owners and offered $85,000 for the

property. Wolfson was informed of the offer O'Brien had made, but he stated that he was not representing O'Brien, but another person. Wolfson assured the owners that if they sold to him, they would not be liable for any commission. The deal was closed. O'Brien as a matter of fact furnished Wolfson $1,000 to make the initial payment, and the contract for conveyance which Wolfson obtained was later assigned to him. Action was brought against O'Brien and Wolfson for damages sustained in conspiring to prevent the plaintiff from earning her commission, and the court held she was entitled to prevail. There, an offer was made to the broker which was satisfactory to the owner. All that remained to be done was the consummation of their negotiations by reducing their agreement to writing. There was evidence, therefore, for submission to the jury that the commission would have been earned had it not been for the fraud of defendants. The court instructed the jury that the two vital elements in plaintiff's case were: "Would the plaintiff have earned a commission had it not been for the acts of the defendants? Was she prevented from earning it by a fraudulent conspiracy on their part?"

In the instant case there was no offer by defendant to purchase the property for $21,000. There is no evidence upon which to base a finding that plaintiff would have earned the commission of $1,000 had it not been for the alleged fraud of defendant. There is no evidence that defendant prevented plaintiff from earning such commission. To recover, it was essential for plaintiff to have alleged and established that he would have been able to have performed his contract had he not been prevented from doing so by the alleged fraud of defendant. It is not sufficient merely to Brokers-intershow that defend- ference with ant wrongfully in- contractterfered with plain

liability.

tiff's contractual relations with Mesher, but it must also be estab

lished that plaintiff sustained damages as a result thereof.

The demurrer to the amended complaint should have been sustained; but, assuming such pleading was not defective, the defendant was entitled to judgment of nonsuit. It is unnecessary to consider other assignments of error.

The judgment of the lower court is reversed.

Burnett and Coshow, JJ., concur in the result.

A petition for rehearing having been filed, Belt, J., on March 23, 1926, handed down the following additional opinion:

Our attention is directed to the fact that no exception was taken to the ruling of the court denying the motion for nonsuit. It is contended that whether there was any evi

dence to be submitted to the jury is a question not subject to review, for the reason only error duly excepted to will be considered on appeal. Defendant moved for directed verdict, because plaintiff had not established a case to be submitted to the jury, and exception was allowed to the ruling of the court denying such motion.

We think the question of the sufficiency of the evidence was properly before this court. There is nothing in addition Appealthat we care to say sufficiency of relative to other evidenceexceptions. matters discussed

in the opinion. This has been a difficult case, and not free from doubt; but, after most careful consideration, we we believe the conclusion reached is sound.

The petition for rehearing is denied.

The general rule is that when the owner of real estate places it in the hands of a broker for sale he does not thereby relinquish his right to sell the property himself, independently of the broker and without the latter's aid, unless the right to sell granted to the broker is exclusive; and, if the owner sells the property before the broker sells it or finds a purchaser, the broker is not entitled to his commission, whether the transaction was effected by the employer himself, or through the medium of another broker. 4 R. C. L. 318, § 56.

In the reported case (RINGLER V. RUBY, ante, 245), it appeared that, after a prospective purchaser of land had negotiated with a broker having it for sale, without reaching an agreement, he went to the owner and, representing that he had not dealt with the broker, concluded a contract with the owner for the latter's asking price, less the amount of commission he had

agreed to pay the broker. The court, while denying recovery on the facts, recognized that the purchaser would have been liable to the broker for fraudulently preventing the consummation of his contract with the owner to sell the land, if he had shown that he would have been able to perform his contract and earn the stipulated commission had it not been for the interference of the purchaser.

This view on the above hypothesis finds support in the recent case of Skene v. Carayanis (1926) 103 Conn. 708, 131 Atl. 497, set out at length in the reported case (RINGLER V. RUBY).

In Krigbaum v. Sbarbaro (1913) 23 Cal. App. 427, 138 Pac. 364, quoted at length in the reported case (RINGLER V. RUBY), the members of a real estate dealers' association were held to be liable for coercing the owner of land into refusing to sell it through the plaintiff, a broker, in whose hands it had been placed, and who had a

prospective purchaser who was disposed to purchase, and to sell it, instead, to another purchaser.

But in Roberts v. Clark (1907) Tex. Civ. App., 103 S. W. 417, it appeared that a broker procured a contract under which the prospective purchaser made a deposit, to be forfeited if he failed to complete his purchase. Thereafter another broker persuaded the purchaser to forfeit his deposit, and himself purchased the property, a deduction from the price being allowed for the amount of the forfeited deposit, and thereafter he conveyed it to the original purchaser. In an action by the original broker against the second broker and the purchaser, it was held that there was no right of recovery, the court saying: "According to the allegations of plaintiff, Clark was not bound by his contract with McGregor to consummate the purchase negotiated through plaintiff. He had the right to withdraw therefrom, suffering only the loss of his cash payment of $500. Plaintiff contemplated this, and knew his right to the excess over $11 an acre was contingent on Clark's will in carrying out the purchase. As Clark had the absolute right to not complete the sale, neither plaintiff nor McGregor could question his motives, nor the means which led or induced him so to act."

In Madden v. Shane (1916) - Tex. Civ. App., 185 S. W. 908, it appeared that a purchaser, after negotiating with the Shane Company, a broker, purchased the property from the owner through a "straw man" in order to avoid payment of a commission. It was held that the owner was liable for the broker's commission, but the purchaser and those acting with him in making the purchase were not. The court said: "Numerous authorities on the question of interference with another's contract, based upon conditions where one contracting party is prevailed upon to breach the same, or cases where this is an unlawful and malicious interference with another's business, we are inclined to think, do not apply to the peculiar facts of this case. See Page on

To

Contracts, vol. 3, §§ 1326 to 1337, inclusive, for a full discussion of the subject. Until Love and Thompson the actually purchased property, whether they did so openly or surreptitiously, the Shane Company had not earned a cent upon the contract. say that they destroyed or interfered with that which they in reality created is, of course, illogical. You would have to base the liability upon reprehensible conduct, because, when you connect it with a legal injury as applied to the damage averred here, you get into the realm of benefit, instead of damage. It may, of course, be said they derived some benefit from the efforts of the real estate agents in purchasing the property called to their attention. So would they have done had they openly purchased, but in receiving those benefits they created the very rights wherein the company claim they were injured."

It is to be observed that on the facts of the reported case (RINGLER V. RUBY) the broker could have recovered a commission from his principal. See 4 R. C. L. p. 321. No reference is, however, made to this right as bearing on the liability of the purchaser to the broker. A different view was taken in Nance v. Menefee (1925) 112 Okla. 61, 242 Pac. 224, an action by a broker against third persons for a conspiracy whereby, to defeat the plaintiff's right to a commission, the property was procured to be transferred to a third person, who transferred it to the prospective purchaser with whom the broker had negotiated. Holding that there was no showing of damages, the court said: "It is admitted apparently that the conveyance to Reel was merely for the purpose of avoiding payment of the commission to Menefee, and that in fact it was a sale from Mrs. Morgan to Nance, and, while this might be denominated a conspiracy, we are unable to see how any damages resulted to the plaintiff, Menefee, by reason of the acts and conduct of the parties in this transaction. If, in fact, he had an enforceable contract with Mrs. Morgan, the transaction would in no wise affect his rights, and if he was

the procuring cause in bringing about the sale between Mr. Morgan and Nance he evidently had a cause of action against Mrs. Morgan for the commission, and the transaction which he charges to be a conspiracy did not affect his rights in any particular. He was in the same attitude or position that he would have been had the deed been executed direct from Mrs. Morgan to Nance, upon her refusal to pay the commission, and if no damages resulted by reason of the conspiracy, and as a direct result thereof, then no cause of action could exist as between the plaintiff, Menefee, and the defendants Nance and Reel." That decision was followed in Sharp v. Keaton (1926) 117 Okla. 131, 245 Pac. 852, wherein the action was for fraud, instead of for conspiracy.

In this connection, it has been held that where an owner is induced to sell direct to a purchaser by the false statement of the latter that he has not dealt with a broker, and the owner has been compelled to pay a commission to the broker, he can recover from the purchaser the amount so paid. Walker v. Macdonald (1912) 4 Ont. Week. N. 1, 6 D. L. R. 501.

In Springer v. Duveen (1914) 164 App. Div. 878, 148 N. Y. Supp. 508, the liability of one who bought through another, after negotiating with a broker, was asserted. Holding that no right of action existed, the court stated the facts and its conclusions as follows: "In brief, the plaintiff alleges that she was authorized by the King of Spain to procure a purchaser for certain tapestries, being promised a commission if she succeeded. She strove to interest a possible purchaser, by whom she was referred to defendants, who, as it was said, would examine and appraise the articles. She saw defendants and gave them such information and in

troductions as were necessary to enable them to gain access to the tapestries. She says that it was agreed that in case the defendants should purchase the said tapestries, either for themselves or for a customer, ‘either directly or through any other person or persons,' they would notify her as to the circumstances of the sale, and would take no action in the premises which would in any way prejudice her right to obtain a commission. She complains that defendants thereafter purchased the tapestries 'through some person or persons unknown to plaintiff,' but this they clearly had the right to do under their agreement with plaintiff, as alleged by her. Without attempting to quote from or paraphrase this very verbose complaint, it is sufficient to say that plaintiff fails to allege any wrongful act or omission on the part of defendants which would appear to stand in the way of collecting her commission from the King of Spain, nor is it alleged that he has ever refused to pay her a commission. She may not recover as for money had and received, for it is not alleged that defendants acted as her agents in effecting the purchase, or that they had agreed to purchase only through her, or had agreed to pay her any part of the profit or commission, if any, that they realized upon the transaction. All they did was to purchase the tapestries, and this, by her own allegation, was precisely what it was contemplated they would do. We are unable to spell out of the complaint any cause of action."

And on the authority of the Springer Case (N. Y.) supra, on a subsequent appeal, in which there was no substantial difference in the complaint, the cause of action alleged was held insufficient. (1916) 173 App. Div. 962, 158 N. Y. Supp. 724.

W. A. S.