cause was submitted to a jury and a verdict was returned in favor of plaintiff for $1,000. Defendant appeals.

Messrs. Beck & Hoecker, Bernstein & Cohen, Martin L. Pipes, John M. Pipes, and George A. Pipes for appel

lant.

Mr. W. B. Shively, for respondent: A party to a contract may maintain an action for damages against a person who maliciously interferes and induces the other party to the contract not to perform, even though the contract was not enforceable by action on account of the statute.

25 R. C. L. 733.

The agreements covered by the Statute of Frauds are void unless written. Taggart v. Hunter, 78 Or. 139, 150 Pac. 738, 152 Pac. 871, Ann. Cas. 1918A, 128.

The defense of the Statute of Frauds cannot be interposed by strangers to the agreement.

Ex parte Banks, 185 Ala. 275, 64 So. 74; Leonard v. Roth, 164 Mich. 646, 130 N. W. 208; Rickards v. Cunningham, 10 Neb. 417, 6 N. W. 475; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30; Clarke v. Philomath College, 99 Or. 366, 193 Pac. 470, 195 Pac. 822; Schulze v. Buckeye Lumber Co. 94 Wash. 520, 162 Pac. 588; Backus v. Feeks, 71 Wash. 508, 129 Pac. 86, Ann. Cas. 1914C, 553; Draper v. Wilson, 143 Wis. 510, 128 N. W. 66, 21 Ann. Cas. 1387; Rohrbaugh v. Mokler, 26 Wyo. 514, 188 Pac. 448.

Only such questions of law as are presented upon an objection, an adverse ruling, and an exception will be reviewed upon an appeal.

State v. Megorden, 49 Or. 259, 88 Pac. 306, 14 Ann. Cas. 130; Bagley Co. V. International Harvester Co. 99 Or. 519, 195 Pac. 348; Nibley v. Delahunt, 105 Or. 46, 209 Pac. 473; Morgan v. Johns, 84 Or. 557, 165 Pac. 369.

Belt, J., delivered the opinion of the court:

There is evidence tending to show that plaintiff had an oral agreement to procure a purchaser for the property as alleged; that pursuant to such agreement he showed defendant the property, advised him as to the terms of sale and the amount of his commission, and endeavored to sell it to him at the price of $21,000, but was unable to do so; that sub

sequent to such negotiations defendant, in an effort to deprive plaintiff of his commission, dealt directly with the owner, and fraudulently concealed from him the fact that he had been negotiating for the property with the plaintiff or that he had been sent there by him; and that by reason of the alleged fraud Mesher was induced to sell the property to defendant for $20,000. Assuming this evidence to be true, does it constitute a prima facie cause of action? Otherwise stated, did the trial court err in submitting the matter to the jury?

Plaintiff contends that a third person who, through fraud and deceit, prevents the performance of a contract, is liable for

Case-contract

interference

the damages Sus- liability for tained. 25 R. C. L. with perform733, ance. and numerous cases cited supporting the text. This proposition of law is sound, but we are concerned whether the averments and proof come within such doctrine. For plaintiff to recover, it was necessary to aver and prove: (1) The contract as alleged; (2) that by reason of the wrongful and fraudulent interfer- to sustain recovence of defendant ference with plaintiff was prevented from performing such contract; and (3) that damages were sustained as a result thereof.

Evidenceproof necessary

ery for inter

contract.

At the very threshold of the case. plaintiff is met with the objection that the alleged contract, by reason of the statute of frauds, is void. Defendant, however, is Action-connot in position to tract-who may urge this point. He urge invalidity. is not a party to the contract. It does not rest with him to say that the parties thereto will not abide by the same regardless of the statute. There is nothing inherently wrong, nor is it illegal, for an owner of real property orally to make such an agreement. The statute of frauds was enacted for the protection of the party sought to be charged. It is personal and not available to strangers to the agreement. Clarke v.

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 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 "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 conclud ing 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 from 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 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

liability.

sufficient merely to Brokers-intershow that defend- ference with ant wrongfully in- contractterfered with plaintiff's contractual relations with Mesher, but it must also be estab

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

ceeded. 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 en

able 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.