GATES v. CARBON HILL COAL CO., 1 F.2d 848

RUDKIN, Circuit Judge (after stating the facts as above).

Section 5825, 2 Rem. Comp. Stats, provides as follows: “In the following cases specified in this section, any agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, that is to say: * * *

(5) An agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission.” The sufficiency of the above memorandum to satisfy the requirements of this

section is the principal question involved on the present writ of error. Looking to the written memorandum alone, there is an entire absence of any agreement authorizing or employing the plaintiff in error as agent or broker to sell the timber, or to pay Mm a commission. It simply grants to him a 10-day option to purchase for $3.25 per 1,000, and, as between the immediate parties, it is immaterial whether we call the 25 eents per 1,000 deduction a commission or a mere rebate.

The plaintiff in error contends that the memorandum has a twofold purpose; that it is an agreement on the part of the defendant in error to sell the timber to Fobes, the disclosed principal, at $3.25 per 1,000, and an agreement to pay the plaintiff in error a commission of 25 eents per 1,000. The defendant in error, on the other hand, contends that the 25 cents per 1,000 is a mere deduction from the purchase price.

These several contentions demonstrate the infirmity of the memorandum, and its deficiencies have been pointed out in repeated decisions of the Supreme Court of the state construing the statute in question. Thus, in Cushing v. Monarch Timber Co., 75 Wash. 678, 684, 135 P. 660, 663 (Ann. Cas. 1914C, 1239) the eourt said: “By an unbroken line of decisions we have held that, to meet this statute, the writing evidencing the agreement must be so complete in itself as to make a resort to parol evidence to establish any material element of the agreement unnecessary.

The rule deduced from prior decisions and tersely expressed in Engleson v. Port Crescent Shingle Co., supra [14 Wash. 424, 133 P. 1030], is that ‘a writing sufficient to satisfy the statute must be coextensive with the stipulations of the parties; that is to say, it must express the entire contract and leave nothing that pertains to the essentials of the contract to be supplied by parol.’ The following decisions amply sustain that statement in all of its breadth. We cannot look beyond the writing itself to fix the liability. Swartswood v. Naslin, 57 Wash. 287, 106 Pac. 770; Keith v.

Smith, 46 Wash. 131, 89 Pac. 473; Foote v. Robbins, 50 Wash. 277, 97 Pac. 103; Forland v. Boyum, 53 Wash. 421, 102 Pac. 34; McCrea v. Ogden, 54 Wash. 521, 103 Pac. 788; Crouch v. Forbes, 63 Wash. 564, 116 Pac. 14.” And, referring to that decision in the recent ease of Levold v. Pederson (Wash.) 227 P. 510, the eourt said: “In that particular ease, and in some of the others cited in the above quotation, the contract was held not to be in writing in all its essential particulars, because not describing the land which the agent claimed to have been authorized to sell.

In some other of the cases cited in the above-quoted language, the contract upon which the agent sought recovery of commission was held not to be in writing, because not containing any express promise to pay the claimed compensation or commission, though containing authorization to the agent to sell.

Manifestly, a promise clearly obligating a contracting party is of the very essence of a contract, and when such promise is not expressed in the writing, plainly one of its most important essentials is wanting.” Measured by the foregoing rules, the second amended complaint failed to state a cause of action, and the judgment of the court below is therefore affirmed.