Appeal from Circuit Court, Lane County. Edward Leavy, Judge.
Norman F. Webb, Salem, argued the cause and filed briefs for appellant.
Robert J. McCrea, Eugene, argued the cause for respondent. With him on the brief were Mulder, Morrow & McCrea, Eugene.
Plaintiff brought an action to recover a real estate broker's commission under an exclusive employment contract. The jury returned a verdict in favor of plaintiff. The trial court granted defendant's motion for a judgment notwithstanding the verdict and plaintiff appealed.
After the parties had entered into the contract of exclusive employment, plaintiff produced a purchaser satisfactory to defendant, and a contract was entered into by the purchaser and defendant which provided as follows:
"Received from Western Aerial, Inc., (hereinafter called purchaser) the sum of Thirty Thousand and no/100 Dollars ($30,000) in the form of a demand note, payable within 60 days after subdivision approval as earnest money and in part payment for the purchase of the following described real estate situated in the City of , County of Lane, State of Oregon, to-wit:
"which we have this day sold to said purchaser for the sum of One Hundred Seventy-Five Thousand and no/100 Dollars ($175,000.00) on the following terms, to-wit: The sum hereinafter received for, of Thirty Thousand and no/100 Dollars ($30,000.00); . . . balance of One Hundred Forty-Five Thousand and no/100 ($145,000.00) payable as follows: purchaser to give seller purchase money mortgage for balance of purchase price, plus payments of $500.00 per month, including interest at rate of 6% per annum, also lot release (including roadway) payments
at rate of $1,750 per acre. Any remaining balance to be paid in full in the year 1976. Seller guarantees a minimum of 90 acres-if less than 90 acres by survey, sale is null and void. Purchaser to have 90 days to obtain subdivision approval * * *." (Emphasis ours.)
Thereafter, it appeared probable that subdivision approval could not be secured within the 90-day period (which terminated November 12) because there would not be sufficient ground moisture for the county sanitarian to determine the winter ground water level. Defendant was requested by the purchaser to extend or to waive the 90-day period and refused to do so. The subdivision approval was not secured. At the expiration of the period, defendant notified the purchaser that the ninety days were up and that he was going to put the property on the market again. Thereafter, the purchaser made a demand upon defendant to put all of the documents required to complete the transaction, in the event subdivision approval was subsequently secured, in escrow, but defendant refused. There was no evidence that the purchaser ever unconditionally offered to pay the $30,000, the amount of the demand note given as earnest money, in the absence of subdivision approval.
In Brown v. Grimm, 258 Or 55, 59-60, 481 P2d 63 (1971), and Setser v. Commonwealth, Inc., 256 Or 11, 470 P2d 142 (1970), we held that a real estate broker does not earn a commission until the purchaser completes the transaction by closing the title in accordance with the provisions of the contract, unless the failure to ...