Cushing v. Monarch Timber Co.

Citations

• 75 Wash. 678
• 135 P. 660
• 1913 Wash. LEXIS 1770

Syllabus

<p>Frauds, Statute op — Pleading—When Raised by Demurrer. In an action for a broker’s commission, in which plaintiff filed a bill of particulars setting out a written contract within the statute of frauds, a demurrer to the complaint for want of sufficient facts raises the defense of the statute of frauds.</p> <p>Same — Defense of Statute — Waiver. In an action to recover a broker’s commission, the defense of the statute of frauds is not waived, where the defendant demurred upon the ground of want of sufficient facts, and later answered setting out a contract within the statute as the only writing and the entire and sole agreement between the parties, and moved for a nonsuit and later for a directed verdict on the express ground that the contract did not comply with the statute of frauds and was void.</p> <p>Same — Broker’s Commissions — Sufficiency of Memorandum— Description of Property. A written contract to pay a broker’s commission on the sale of timber lands and timber is within the statute of frauds, Rem. & Bal. Code, § 5289, and void, where it did not contain any description of the lands or timber to be sold, merely referring to it as “our timber.”</p> <p>Same — Performance—Effect. Performance does not take a contract out of the operation of the statute of frauds.</p> <p>Same — Actions—Quantum Meruit. A recovery upon quantum, meruit cannot be bad in an action to recover a broker’s commission wbicb was witbin tbe statute of frauds.</p>