The opinion
Mr. Justice Burnett
delivered the following opinion, concurring specially:
In the petition for rehearing in this case counsel for defendant indulge in some criticism of the language used in the opinion by Mr. Justice Harris, here quoted:
“The consideration for the promise upon which this action is brought cannot be said to be a promise made by the plaintiff or money paid by it, because the writing does not state nor is it claimed that the plaintiff gave a promise or paid money for the promise of the defendant. ’ ’
The critique is aimed at and can apply only to the method of the argument by the process of exclusion centering finally upon the construction of the only writing adduced in evidence.
We must all agree that in this case the crucial question is whether the writing of October 26,1915, quoted at large in the former opinion is sufficient within the statute of frauds to charge the defendant who signed the same. All other questions aside, the controversy narrows down to whether there is an expression in that instrument of the consideration necessary to support the same. Explicitly declaring to the plaintiff to whom the writing was addressed that it is employed and authorized to offer the realty described in the mortgage for sale and to accept a deposit to be applied to the purchase price, the defendant states in so many words:
“In the event that you find a buyer ready and willing to consummate a deal for said price and terms or on such further terms and price as may be agreed to by me or place me in touch with a buyer to whom I at any subsequent time sell or convey said property I will agree to pay you in cash as a commission for your services the following sums,” describing the percentage to be paid.
*542 “To express” in the sense used by the statute is “to set forth or manifest to the observation or understanding especially by written or spoken language”: Standard Dictionary, title ‘ ‘ Express. ’ ’ Webster gives the following definition: “To represent in words; to state; utter; hence to make known or manifest; to give or convey a true impression of.” The Century Dictionary defines it thus: “To make known in any way, but especially by spoken or written words.” In the excerpt quoted from the instrument which the defendant signed he conveys to the understanding by his written language the thing which induced him to sign the document to consummate a deal for the stated price and terms. In effect he says to the plaintiff: “Tour finding a buyer, etc., induces me to sign this writing by which I bind myself to pay you money for your services to be rendered in the respect I have described.” The fault in the argument of the defendant seems to be that he thinks the consideration required must be a present consideration; either the concurrent payment of money or a promise coincident in time with the making of the agreement signed by the defendant. It is true that a past consideration is not, while on the other hand present consideration is competent to sustain an agreement; and it is likewise true that a condition to be performed in the future is a consideration efficient in the support of a present contract. If the future condition is not performed the contract lapses, not because it was void ab initio but because the consideration fails, thus releasing the promisor.
It is plain here what moved the defendant to sign the writing upon which he is charged and this moving cause is delineated by the very language of the instrument itself constituting an expression of the con-
*543 sideration within the meaning of the statute. Lueddemann v . Rudolf, 79 Or. 249 ( 154 Pac. 116 , 155 Pac. 172 ), was decided chiefly on the principle that the correspondence did not amount to a contract by offer and acceptance; that “throughout the whole correspondence there is never a point where one party says ‘I offer this,’ and the other party replies ‘I accept it.’ ” It is not an authority controlling the present issue. Neither is Great Western Land Co v. Waite, ante, p. 488 ( 168 Pac. 927 , 171 Pac. 193 ), a parallel case with the one in hand; for in that instance there was no expression of anything which could be counted upon either presently on in the future as an inducement to the defendant to sign the writing upon which the plaintiff sought to charge him.