188 Ind. 548 | Ind. | 1919
— Appellee brought this, action in the trial court to recover on an oral contract by the terms of which appellant, as alleged, agreed to pay him the sum of $25,000, on certain conditions stipulated therein. There was a verdict and judgment in favor of appellee. On appeal several errors are assigned as cause for reversal, most of which need not be considered. As reasons for a new trial it was stated that the evidence was not sufficient to sustain the verdict, and that the court erred in refusing the request of appellant to instruct the jury, at the close of the evidence, to return a verdict in favor of appellant. ■
Appellant asserts that the contract on which the verdict is based is invalid because, as shown by the complaint and the evidence, it was a contract for the payment of a sum of money by him as a commission or reward to appellee for the finding or procuring by him of purchasers for real estate belonging to appellant within the meaning of §7463 Burns 1914, Acts 1913 p. 638, which provides that no such contract shall be valid unless the same shall be in writing, signed by the owner of such real estate or his legally appointed and duly qualified representative.
The evidence of appellee shows that he went to Gary,
Appellee testified that, after he had begun selling real estate on commission, he had a conversation with appellant, in which he told him that he did not think he was making enough money for what he felt he was capable of doing. According to appellee’s testimony, appellant said: “I want you to stay with me. There is enough property here to make us all rich and I am well pleased with the prices you are getting, the business you are getting, and you will see when you are through with me that you will be pleased to have remained with me.”' Appellee then said: “Well, I would like to have some definite understanding as to what I am to get.” Appellant said: “Well, I will tell you what I will do. After one hundred thousand dollars’ worth of property will have been sold, you will get twenty-five thousand dollars.” Appellee said: “And I will continue also with my $100 commission per lot?” Appellant said: “Oh, certainly, certainly, this will-be extra.” Appellee said: “Well, if I can have the permission to raise the prices as I see fit, I will accept that offer.” Appellant said: “Well that is all right, don’t raise it too high.”
. Appellee cites and relies on the case of Sherman v. Clear View Orchard Co. (1915), 74 Ore. 240, 145 Pac. 264, as sustaining his theory. Under the facts of that case appellee agreed to organize agencies in different cities, and to dispose of orchard tracts owned by appellant through such agencies, and to receive as compensation five per cent, of the aggregate sales. The contract rested in parol, and the appellant invoked the application of a statute similar to the section of our statute heretofore cited. The court held that the statute did not apply to the contract shown by the evidence. This court has a high regard for the decisions of the courts of last resort in other states; but after a thoughtful . consideration of the case cited it is unable to adopt the conclusion reached by the Oregon court as to the applicability of the statute to a case of this kind. The authorities cited to sustain the conclusion do not bear directly on the question involved, and the reasons adduced in support of it do not appear to be very cogent.
No other decisions directly in point have been cited, and the research of the court has failed to disclose any such authorities. There are some cases bearing indirectly on the question which seem to support the conclusion reached in this opinion. Stout v. Humphrey (1903), 69 N. J. Law 436, 55 Atl. 281; Dolan v. O’Toole (1900), 129 Cal. 488, 62 Pac. 92.
The court should have directed the jury at the conclusion of the evidence to return a verdict in favor of the defendant.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.
Note. — Reported in 124 N. E. 873. Sale of real estate: commission, necessity for written contract, 44 L. R. A. 601, 9 L. R. A. (N. S.) 933, 13 Ann. Cas. 977, Ann. Cas. 1915A 1133. See under (1, 2) 9 C. J. 558, 600.