The opinion
Rehearing denied February 26;, 1918.
On Petition for Rehearing. Rehearing Denied.
*537 Department 1.
Mr. Justice Harris
delivered the opinion of the court.
The original opinion states that the contention that the consideration is not expressed involves a determination of two questions: “(1) What is the consideration that must be expressed; and (2) when can it be said that the consideration is expressed. ’ ’ Before attempting to ascertain whether the consideration is expressed in the writing, the original opinion suggests three possible considerations for the promise sued upon; (1) A promise by the broker; (2) payment of money by the broker; and (3) the service to be rendered by the broker. The opinion proceeds to eliminate the first two things suggested, determines that the service rendered by the broker is the consideration, and then undertakes to ascertain whether the consideration is expressed in the writing. The petitioner now insists that the conclusion that the-service of the broker is the consideration “cannot be drawn from the facts” and that it is a mere assumption. The plaintiff does not claim that the consideration for the promise of the defendant is to be found in a promise made by the plaintiff or in money paid by it. In his printed brief the respondent persistently and consistently contended that the writing was a nudum pactum because without consideration. For example on page 11 of respondent’s brief we find the following:
“The consideration, therefore, in the instant case 5 s that which induced the respondent Crowley to sign the offer upon which the appellant relies. If there was a monetary consideration, what was it, and from whom and to whom did it move? The complaint is silent as to this. If there was a mutual covenant or promise on the part of the Oregon Home Builders as an inducement to the respondent Crowley for ma.lnng *538 this offer, where is the promise expressed in the writing or in the complaint? The only answer is, there was no such promise, neither is there any expressed in the writing nor any allegation in the complaint that one was made. The conclusion is, as hereinbefore stated, that this written offer was a voluntary one for which no consideration was given, and in which no consideration is expressed. ”
Again for the purpose of supporting his argument that the complaint is insufficient the respondent says:
‘‘ There was no financial consideration given, neither was there a covenant on behalf of the Oregon Home Builders to do or refrain from doing anything.”
9. When we concluded that the consideration was not to be found in a promise made by the plaintiff or in money paid by it, we merely determined the nonexistence of what the plaintiff admitted and defendant himself contended did not exist. If it be conceded that the consideration could have been any one of the three things suggested as a possible consideration, and if it is afterwards ascertained that the writing does not express two of those possible considerations, but does express the thir'd one then it is at least fair to conclude that the thing expressed is the consideration• and, moreover, it would be illogical to say that the thing expressed was not the consideration merely because the other two unexpressed things could have been the consideration, and when we find a consideration expressed in the writing the instrument cannot be said to be insufficient merely because some other-possible consideration is not expressed. There must be some measure by which to test the sufficiency of a writing and the test is found in the rule found in Browne on St. of Frauds (5 ed.), Section 405, and quoted in the original opinion. Applying this rule to *539 the writing it is obvious that Crowley’s promise to pay a commission was designed to procure the rendition of the service which the plaintiff did render and hence the service “so stipulated for by the defendant, is taken to be the inducement to his promise.”
10. The petitioner insists that “there is no specific statement anywhere in the writing stating what the consideration is for Crowley’s promise.” Although the consideration must be expressed it need not be formally and precisely expressed. In every jurisdiction, it is held that the consideration is expressed if it appears by necessary inference. In every one of the states having a statute requiring the expression of the consideration it is the established rule that the statute is satisfied if the consideration appears by necessary inference; and so, too, where an expression of the consideration is required by force of judicial decision the requirement is fulfilled if the consideration appears by necessary inference. The courts have differed upon many questions arising out of the statute of frauds, but upon this question all jurisdictions are agreed. The rule that the consideration is sufficiently expressed if it appears by necessary inference was employed by this court when trying to find a consideration for the writing involved in Corbitt v. Salem Gaslight Co., 6 Or. 405, 408 ( 25 Am. Rep. 541 ); it was recognized again in Johnston v. Wadsworth, 24 Or. 494, 503 ( 34 Pac. 13 ); it was indubitably adopted and squarely applied in Henderson v. Lemke, 60 Or. 363, 365 ( 119 Pac. 482 ); and it was again applied in the original opinion in the instant case. This rule has been applied for more than a century, is accepted everywhere without protest or dissent, and is thoroughly established in our jurisprudence. Indeed, if there is any departure anywhere from the rule ap *540 plied in the original opinion it is one of relaxation rather than restriction, for the language of many cases is more liberal that the language employed in the instant case.
11. The defendant takes the position that the oral acceptance by the plaintiff “was void under the statute of frauds and no proof could be offered thereon.” The law is stated in 20 Cyc. 254, thus:
“A written offer may constitute a sufficient memorandum of the contract to charge the party making it if later accepted by parol”: See, also, Browne on St. of Frauds (5 ed.), § 345a.
The original opinion is not out of joint with Lueddemann v. Rudolf, 70 Or. 249 ( 154 Pac. 116 , 155 Pac. 172 ); nor is it in conflict with Great Western Land Co. v. Waite, ante, p. 488 ( 168 Pac. 927 , 171 Pac. 193 ). In the former case the writings disclosed nothing “but fruitless negotiation”; and in the latter the plaintiff was without any writing, signed by the party to be charged, showing a hiring. In neither of these cases did the minds of the parties meet upon an offer made by one and accepted by the other. In the instant case the minds of the parties did meet. The written offer was accepted and after being accepted the condition of the promise was performed. The writing signed by the party to be charged names both parties, describes the subject matter, states the promise, and prescribes the condition upon which the promise is made. Having accepted the written offer and performed the condition, the plaintiff is in a position to compel payment because the writing contains every element necessary to satisfy the statute. The petition for a rehearing is denied. Rehearing Denied.
Mb. Chief Justice McBride and Mr. Justice Benson concur.