Opinion
Argued November 3, Affirmed December 29, 1967
Appeal from Circuit Court, Klamath County.
L. ORTH SISEMORE, Judge.
AFFIRMED.
Keith D. Evans, Salem, argued the cause and filed a brief for appellants.
Hal F. Coe, Klamath Falls, argued the cause an filed a brief for respondent.
Before SLOAN, Presiding Justice, and DENECKE and HOLMAN, Justices.
This is an action for a real estate broker's commission. Defendants denied that any commission was due and alleged and presented evidence intended to prove a breach of faith on the part of plaintiff's agent. The case was tried to a jury. A verdict was given plaintiff. Defendants appeal.
Defendants claim the trial court erred in denying their motion for an involuntary nonsuit. Defendants argue that the evidence conclusively revealed that after defendants listed their property for sale with plaintiff that plaintiff's agent, Bartram, became more interested in acquiring the property himself than in selling it; that he brought the ultimate purchasers to the property and interested them in it, and that Bartram refused to accept an earnest money payment because of his own interest in the property. Bartram claimed that he refused the offer because it was not a good offer and would prevent other efforts to sell. Later the purchasers got in contact with defendants and the sale was consummated between the parties.
Other than for the alleged violation of a fiduciary duty of plaintiff's agent, defendants' sale of the property to the purchasers provided by plaintiff, justified plaintiff's claim to a commission. The evidence as to the entire transaction was conflicting and particularly required judging the credibility of the witnesses; the essence of the jury function. The motion was properly denied.
Assignments are also directed at the refusal of the court to sustain a demurrer to the complaint and to give a requested instruction. The complaint alleged and included the contract between the parties, and alleged its performance. That is sufficient to state a cause of action.
The subject matter of the requested instruction was otherwise stated by the court in his instructions.
Affirmed.