78 Ind. App. 143 | Ind. Ct. App. | 1921
— Appellant filed his verified claim against the estate of Orlando C. Brewer, deceased, which estate was then pending in the Sullivan Circuit Court, to recover $4,400 as commission for effecting the sale of certain real estate. . The claim was based upon two written commission contracts, each of which provided that said Brewer agreed “to accept $135 per acre for said property and to pay a commission of $10 per acre.” After the commission contracts were entered into, appellant caused a written contract to be entered into for the sale of real estate between said Brewer and one Vanwey. The description of the real estate owned by said Brewer and involved in this latter contract of sale was 300 acres in Township 9, Range 10, Section 9; also 140 acres in Township 9, Range 10, Section 10, all in Sullivan county, Indiana. There was a provision in the contract to the effect that in case of failure of Vanwey to make either of the payments or perform any of the covenants on his part thereby made and entered into, the contract should, at the option of Brewer, be forfeited and determined; also a further provision that if said Vanwey could not sell his 126 acres where he then lived, the contract was null and void. Vanwey did not sell his said farm, and did not carry out the contract with Brewer. Because
The substantial question presented by the motion for a new trial is as to whether the court erred in giving the jury a peremptory instruction to return a verdict for appellee.
A careful reading of this record fails to disclose any evidence which will satisfy either of said conditions. The court did not err in giving said instruction, and the judgment is therefore affirmed.