71 Neb. 401 | Neb. | 1904
The main question in this case seems to be, avIi ether the Nebraska statute, requiring all contracts for the selling of real estate between the owner and real estate brokers to be in writing, signed by both parties and fixing the amount of compensation, prevents any recovery specifically for a real estate broker’s services in selling land, except such as is provided for by a contract answering these requirements?
The plaintiffs, defendants in error, brought suit in the district court to recover from Blair $325, alleging that they were real estate brokers, buying and selling real (‘state, for which services they charged their employers a commission; that in June, 1902, defendant owned all but 80 acres of a certain section of land in Lancaster county; that he then employed the plaintiffs to find a purchaser for the land and agreed to pay the usual commission, namely, 5 per cent, on the first $1,000 and 2% per cent, on the rest of the purchase price; that plaintiffs did find a purchaser, with whom defendant entered into negotiations which resulted in a sale in February following; that just prior to the sale, the defendant, with full knowledge of their services and efforts, and that they had practically concluded the transaction, entered into independent negotiations with the purchaser, and conveyed to the latter the land for $12,000, and réfused to pay plaintiffs’ commission; that the reasonable value of plaintiffs’ services was “the agreed and customary commission thereon,” namely, 5 per cent, on the first $1,000 of the said purchase price and 2l/> per cent, on the remainder, or $325, on which nothing was paid.
Defendant answered, admitting the ownership of the land; admitting the sale of it for $12,000; he says that in June, 1902, plaintiffs- approached him and asked him to put a price on the premises; that he fixed the price at $22.50 an acre, and agreed to pay a commission of $50 on the first $1,000 of the consideration and $25 on each sub
The court found: (1) Plaintiffs Avere real estate brokers, buying and selling real estate on commission; (2) That the defendant OAvned the land and agreed Avith plaintiffs in June, 1.902, as stated in the answer; (3) that plaintiffs called the attention of James and Phil O’Brien to the land, and induced them to (Miter into negotiations for its purchase, and submit propositions to the defendant, the best one of which Avas for the sum of $11.500. This AA'as not accepted but afterwards, by plaintiffs’ efforts, the O’Briens were induced to offer $12,000; (4) That the O’Briens submitted this proposition through one McLaughlin, to AAdiose attention plaintiffs had brought the land and its price; that defendant accepted this prosposition, knoAving that the purchasers AArere the same parties AArho had negotiated for the land through the plaintiffs; (5) That the O’Briens preferred to obtain the land through McLaughlin, and whether or not the. sale could have been concluded without his assistance, the trial court was not able to determine; (6) That McLaughlin and Young received $300 commission for the sale.
His contentions are as above suggested, that the statute', permits no recovery for services of this kind, except upon a written contract, and that, in any event, there is no sufficient pleading of services to entitle plaintiffs to recover anything except an agreed contract price, which is certainly forbidden. It is also urged that the evidence does not support ihe finding that the sale was induced by the plaintiffs’ efforts.
Dealing with the last question first, it appears that, immediately after the arrangement with the defendant, the plaintiffs wrote to the O’Briens and other parties in regard to the land, and advertised it in Lancaster county newspapers; plaintiffs were well acquainted Avith one of the O’Briens, who then lived at Court!and, and, as a result, the latter personally examined the land; a good deal of negotiating ensued until some time in October, when the O’Brien brothers made the offer of $11,500 for
A somewhat careful consideration of the statute now under consideration seems to indicate a distinction. In the case of an agreement for services, void because not to be performed within a year, a recovery for services rendered is in no way interfered with by the statute. The latter does not make an agreement to do that particular work void unless in writing. Consequently, the statute of frauds is not in any way inimical to a recovery on the implied contract for the work actually done. On the con
In the case of payments made on an oral agreement to convey land which the recipient refuses to perform, the recovery is, of course, and always, for the money paid, not for any loss of profits on the land bargain. In this case it does not seem possible that plaintiffs can have, any recovery of commissions for making a sale. If they have incurred expenses in the transaction at defendant’s request and which have redounded to his benefit, they could doubtless recover for it as money laid out and expended for his benefit and at his request. If they had shown an absolute loss of time which could and would have been valuably employed, except for its use at defendant’s request upon his employment, they could probably recover for that as time devoted to defendant’s profit at his request, but for services as a broker in selling land, reckoned in percentage as commission, a written contract seems to be necessary under this statute.
It is recommended that the judgment of the district court be reversed and the cause remanded, with leave to amend the pleadings.
I>y the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded, with leave to amend the pleadings.
REVERSED.