# Brady v. East Portland Sheet Metal Works

> Oregon Supreme Court · May 11, 1960 · 222 Or. 584

URL: https://www.frixlaw.com/law-library/cases/9530511

## Case

- **Full name:** BRADY v. EAST PORTLAND SHEET METAL WORKS Et Al and KASCH
- **Court:** Oregon Supreme Court
- **Decided:** May 11, 1960
- **Citations:** 222 Or. 584; 352 P.2d 144; 1960 Ore. LEXIS 473
- **Precedential status:** Published
- **Opinion:** Concurrence by Duncan
- **Judges:** McAllister, Rossman, Perry, Duncan
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9530511

## Opinion text

DUNCAN, J.,
specially concurring.
The action arose out of a listing agreement in writing whereby defendant Kasch gave to plaintiff for a specified period the exclusive right to sell real and personal property. The agreed commission for performance by plaintiff was that provided by Portland Eealty Board rules. During the exclusive period defendant disposed of a portion of the listed property, *597 thereby preventing plaintiff from performing. When informed by defendant that he was going to otherwise dispose of the property, plaintiff terminated her efforts under the agreement without having procured a buyer ready, willing and able to purchase. A party repudiating a contract made with another for services to be performed by the other and refusing longer to be bound by its terms, the injured party has an election to pursue one of three remedies as follows:
“ ‘He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or (2) he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover under the contract; or (3) he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.’ Krebs Hop Co. v. Livesley, 59 Or. 574, 579 ( 114 Pac. 944 , 118 Pac. 165 , Ann. Cas. 1913C, 758.” Jacobberger v. School District No. 1, 122 Or 124 , 256 P 652 .
Plaintiff elected to seek her remedy under option (1) for services rendered, as appears by paragraph IV of her complaint as follows:
“Alleges that prior to July 10, 1956, the exact date being to the plaintiff unknown, defendants, in violation of the terms of the said exclusive listing agreement, sold or agreed to sell, all or a substantial portion of the property described in said listing agreement and by virtue thereof defendants became indebted to plaintiff in the sum of $7500.00 for services, work and labor performed and done by plaintiff as a real estate broker for defendants at their special instance and request.”
At the trial plaintiff contended the action to be one for damages for breach so as to entitle her to recover *598 an amount equal to the agreed commission. This position would have been well taken had she elected to proceed under option (3), but she made no effort to amend her complaint accordingly.
The trial court found that within the period of the exclusive listing plaintiff had produced a buyer ready, willing and able to purchase the listed property. The evidence failed to support this finding, and defendant took appropriate exception to that finding and raised the objection on appeal.
Had plaintiff performed the contract by finding such a buyer, then even though she brought her action in quantum meruit, her recovery would have been measured by the commission contracted for; but inasmuch as the contract remained executory, her recovery was limited to the reasonable value of services actually rendered. This was all she sought by her complaint.
Because the evidence is insufficient on which to find the reasonable value of her services actually rendered, the case should be returned to the trial court to permit plaintiff to offer evidence of the value of those services. This procedure is pursuant to the holding in Brown v. Bonesteele, 218 Or 312 , 344 P2d 928 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9530511. Public record. Not legal advice.