AESCHLIMANN v. ROSBACH, 277 Or. 25 (1977)

558 P.2d 1231

AESCHLIMANN et ux, Appellants, v. ROSBACH et al, Respondents.

Oregon Supreme Court.Argued November 5, 1976.
Affirmed January 20, 1977.

Appeal from Circuit Court, Marion County.

Duane R. Ertsgaard, Judge.


F.P. Stager, Salem, argued the cause for appellants. With him on the brief were Jack V. Rounsefell, and Bell, Bell
Rounsefell, Stayton.

Norman K. Winslow, Salem, argued the cause for respondents. With him on the brief was Winslow Kaffun, Salem.

Before Denecke, Chief Justice, and Tongue, Bryson, and Lent, Justices.


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This is a suit for foreclosure in which defendant Bruce Rosbach counterclaimed for a real estate broker’s commission. Defendant Bruce Rosbach was plaintiffs’ real estate broker. Defendant Deborah Ann Rosbach, daughter of Bruce Rosbach, is the current title holder of property sold by plaintiffs through Bruce Rosbach to the J.L.F. Corporation. All the foreclosure issues have been resolved, and this appeal involves only defendant Bruce Rosbach’s counterclaim for the broker’s commission allegedly owed to him by plaintiffs for his participation in the sale to the J.L.F. Corporation.

In their answer to defendant’s counterclaim, plaintiffs alleged, inter alia, that defendant violated his fiduciary duty to plaintiffs by failing to disclose to them that he had some “interest, ownership or control in J.L.F. Corporation” at the time of the sale. The trial court made findings of fact and conclusions of law as follows:

“* * * * *.

“(2) That at the time of the sale, out of which the said promissory note arose, the Defendant Bruce Rosbach had no interest in, ownership or control of the JLF Corporation, as alleged in the Plaintiffs’ first reply.

“* * * * *.”

Judgment was entered in favor of defendant Bruce Rosbach on his counterclaim.

Plaintiffs contend that the trial court erred in not requiring the defendant Bruce Rosbach to introduce written evidence of his disclosure to the plaintiffs of defendant’s interest in the property and plaintiffs’ informed consent to defendant’s continuing to proceed as the broker. Inasmuch as the trial court found the defendant had no interest, plaintiffs’ contention is irrelevant.


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