Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Henry L. Bauer, Portland, argued the cause for respondent. With him on the brief were Bauer, Murphy, Bayless & Fundingsland, Portland.
Thornton, Judge. Schwab, Chief Judge, and Fort, Judge.
The Real Estate Commissioner entered an order suspending for 60 days petitioner's license as an associate real estate broker for alleged improper conduct in the handling of a property transaction. Petitioner appealed to the circuit court for Multnomah County, which reversed and set aside the order of the Real Estate Commissioner. The Commissioner then appealed the opinion and order of the circuit court to this court. We reverse.
The Commissioner's order of suspension issued following a hearing on October 15, 1970. The notice of hearing charged petitioner with violations of ORS 696.300 (1) (a) and (q). The Commissioner found petitioner's
action in the handling of the real estate transaction "* * * to constitute or demonstrate bad faith, untrustworthiness and improper dealing in violation of ORS 696.300 (1) (q)."*fn1
The central issue before us is whether in order to prove a violation of the above statute, the evidence must establish that petitioner breached a legally enforceable agreement.
The essential facts are as follows:
Petitioner has been licensed to sell real estate since 1968. On or about April 5, 1970, petitioner placed an advertisement in a local newspaper offering for sale a duplex located in Portland, which petitioner himself was then purchasing on contract from a third party. Herman Becker read the advertisement and telephoned the petitioner three times on April 5, making inquiries about the property -- the rental, taxes, etc. Mr. Becker made an appointment with petitioner for
8 a.m. on April 6 for Mrs. Becker to meet with petitioner and view the property. Both Mr. and Mrs. Becker testified that Mrs. Becker was representing the two of them in dealing with petitioner.
The night before the scheduled meeting the Beckers prepared a proposed earnest money agreement, using a two-part printed form, in which they proposed to offer to purchase the property for $25,500, although the asking price was $28,500. The upper half of the form was captioned "EARNEST MONEY RECEIPT," and the lower half "AGREEMENT TO PURCHASE." In addition to filling in the various blank spaces on the printed form ...