Shields v. Columbia River Lumber Co.

GILBERT, Circuit Judge (after stating the facts as above). The plaintiff assigns error to the judgment of nonsuit, and contends that he furnished sufficient evidence to go to the jury to show that Winsor, the plaintiff’s assignee, earned the commission which was contemplated *981 in the agreement of August 23, 1911, in that said Winsor found a purchaser for the defendant’s lands, brought the parties together, and induced them to enter into the written instrument of November 29, 1911, in pursuance of which a corporation was formed, and the property of the defendant was deeded to that corporation; and the plaintiff relies especially upon that portion of the defendant’s written instructions to the Union Trust Company, in which that company was requested and directed to set over and hold for the benefit of Thomas Winsor $10,000 worth of the certificates of stock of the corporation that was to be formed, “said amounts,” the instrument goes on to say, “to cover all the claim or claims of said Thomas Winsor * * * against any of the parties to said transaction, on account of commissions for the negotiating and completing of sale of said property.” But the plaintiff omits to mention that, between the provisions so quoted, the instrument contains the following: “And when the cash shall be paid to redeem said certificates and the interest thereon, you arc hereby further directed to pay to Thomas Winsor, of Seattle, Wash., the sum of §10,000, plus the interest at 6 per cent, accrued thereon.” The instructions to the escrow holder do not mean, and do not purport to say, that Winsor had earned his commission, or that the trust company was made a trustee of $10,000 worth of stock certificates for Winsor. Those provisions are to be construed together with the terms of the contract between Winsor and the defendant of the same date, and when so construed it is clear that while the certificates were to be held for the benefit of Winsor, and for his protection, the money secured thereby was to be turned over to him only in case he earned the commission in accordance with the precise terms of his agreement with the defendant. When we turn to that agreement we find that the payment of Winsor’s commission depended upon Kellogg’s “carrying out completely the said proposed sale” — a provision inserted in lie instrument at the defendant’s special instance. In other words, the agreement makes it plain that Winsor was to be paid a commission only in the event that the defendant received the full purchase price for which it agreed to sell the lands, and that he was to be paid out of the money so realized and not otherwise. If it had been the intention that the shares of stock were earned by Winsor when the land was deeded to the P. P. Kellogg Lumber Company, there would have been no occasion to place the same in escrow. They would-have been delivered to Winsor. Now, it is clear that the sale never was completed. It is true that title to the lands was transferred from the defendant to a corporation of which the defendant owned the stock, but that was not a sale of the lands. It was but a step preparatory to a sale. As owner of the stock of the corporation the defendant still owned the lands. The sale would have been completed and perfected only when the land was paid for; that is to say, when Kellogg, the proposed purchaser, paid the defendant the agreed purchase price for the stock. That agreement was never carried out. On February 8, 1913, Kellogg abandoned the effort to purchase the stock, and the agreement of November 29, 1911, was surrendered and canceled. The defendant never re *982 ceived a dollar in consideration for a sale of its land, and it never became liable to Winsor for the payment of a commission. The judgment is affirmed.