197 Ky. 59 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
Appellant Dowell and appellee Beard were real estate brokers located at Hardinsburg in Breckinridge county.
“Whereas, in the actions of A. J. Gross’ Executor, etc., v. William G. Smart, etc., pending in the Breckinridge circuit court sales of the real estate which belonged to the late A. J. Gross and Sallie Gross, his wife, both deceased, are ordered to be sold at the courthouse door in Hardinsburg, Kentucky, and whereas, Josephine Pumphrey is the, legatee or devisee of said real estate and after the payment of the debts against said estate is entitled to the remainder of said land, if it-brings, sufficient to pay said debts, approximated at $14,600.00.
“In consideration of M. D. Beard and F. R. Dowell’s guaranteeing that 494 acres of the land ordered to be sold on Monday, the 25th day of November, 1918, shall bring $16,500.00, leaving 110 acres of said land not to be sold the said Josephine Pumphrey and William Pumphrey, her husband, agree that any sum over and above said $16,500.00 that said 494 acres of land shall bring shall go to said Beard and Dowell, and said Beard & Dowell agree that if said 494 acres shall bring under said $16,500.00 at said sale, to account to said Mrs. Pumphrey for any shortage between what it might bring at public outcry and said sum of $16,500.00.
“Josephine Pumphrey,
W. G. Pumphrey,
M. D. Beard,
F. R. Dowell.”
Dowell and Beard set about to find purchasers for the land which by the judgment had been laid off into eight parcels with directions to sell enough thereof to bring the debt, interest and cost, which was estimated to be about $14,600.00. On the day of sale two- tracts, totaling 300 acres only, were sold, bringing the sum. of $18,000.00, thus leaving unsold not only the home place of 110 acres but about 194 acres additional. At the conclusion of the sale it was agreed between the Pumphreys and Beard and Dowell that the former would pay to the latter all the difference in the sale price between that mentioned in the contract, $16,500.00, and $18,000.00, or $3,500.00, and would convey to them the 194 acres which were not sold; but on being advised by counsel that the contract into which the Pumphreys had entered with Dowell and Beard was unenforceable, they declined to carry out t-lieir agreement to convey the balance of the land to Beard and Dowell, or to pay .them the $1,500.00
Was the petition subject to demurrer?
Whether the contract sued on is one which the law regards as inimical to it and contrary to public policy, or whether it is a guarantee or indemnity undertaking which the rules of equity will enforce, is the question.
We have a statute against gaming which reads:
“Every contract, conveyance, transfer, or assurance, for the consideration, in whole or in part, or money, property, or other thing won, lost or bet in any game, sport, pastime, wager, or for the consideration of money, property, or other thing lent or advanced for the purpose of gaming, or lent or advanced at the time of any betting, gaming, or wagering to a person then actually engaged in betting, gaming or wagering, shall be void.” Section 1955, Kentucky Statutes.
Construing this section of the statute we have held that dealing in futures is gambling. Lyons v. Hodgen, 90 Ky. 280; Dunlap & Company v. Perry, 190 Ky. 291; Betting on an Election—Commonwealth v. Leak, 116 Ky. 540; Betting on Horse Race—McDevitt v. Thomas, 130 Ky. 805; Operating Bucket Shop—Smith v. Western Union, 84 Ky. 664; Faro Bank— Commonwealth v. Monarch, 6 Bush, 301; Pool Selling—Smith v. Commonwealth, 11 Ky. Opin. 224; Playing for Treats, Cigars, Etc.—Marston v. Commonwealth, 18 B. Monroe 490.
It is insisted by appellee Pumphrey that the contract sued on comes within the purview of section 1955, Kentucky Statutes, and is unenforceable. In support of this it is said that the contract clearly evidences a dealing in futures or options which is a species of gambl
While we have held that a contract for the sale of stocks or other commodities to be delivered in the future, there being no intention to actually deliver but that the margins between the price paid and that at which the stock or commodity was selling on the day fixed for the delivery, should pass to the- one in whose favor the margin fell, was a gambling contract and unenforceable, we lrave nevertheless held such contracts were enforceable 'where actual delivery was intended, and this seems to be the general rule throughout the country. 20 Cyc. p. 926. In the case of Collins v. Alvery, reported in 10 Ky. L. R, 985, it was held that Collins, who to induce Alvey to subscribe to the capital stock of the corporation, guaranteed her a dividend of ten per cent upon all of the paid-up stock if she would allow him the dividend actually earned by the company, that the contract 'was binding and based upon a sufficient consideration, and was not illegal.
The Herald Publishing Company entered into a written contract with the National Circulation Company by which the latter concern agreed in substance that it would increase the circulation of the Herald and also its advertising by a certain campaign which the circulation company would put on in the interest of the Herald, and that the money received from such subscriptions and the new advertising obtained for the Herald by the circulation company, would be sufficient to meet the cost of all the premiums and prizes offered by the Herald in the contest as well as by all commissions due the circulation company for new business obtained by it for the Herald. The sum realized from the campaign by the circulation company was not sufficient to pay for the prizes and to pay its commissions, but we held the contract enforceable, and that the circulation company was liable to the Herald Publishing Company for the difference between
An owner of standing timber agreed with a real estate broker that he would take $10,000.00 for his timber, and to give the broker any amount in excess of $10,000.00 for which the latter might sell'the timber; the broker found a purchaser ready, able and willing to take the timber at $13,000.00, and this court held the contract enforceable, and the broker entitled to the $3,000.00 as commission. Womack v. Douglas, 157 Ky. 716.
The owner of a farm offered to sell it for $7,975.00 net and agreed with the broker that if he would find a purchaser for the farm he could have all the excess in price over $7,975.00, but if the broker found a purchaser to whom the owner sold the land the broker should have $500.00 as commission. The broker found a purchaser ready, able and willing to take the property and the owner was liable to him for the $500.00 commission. Futrell v. Reeves, 165 Ky. 283.
A contract made between the owner and a broker for-the sale of the property by the latter whereby the broker is to have all in excess of a stipulated price for bringing about the sale, the contract is a valid one and enforceable. Blakes Lee v. Ervin, 40 Neb. 130; Geoghegan v. Chatterton, N. Y. App. Div. Reports, 113 N. Y., p. 835 ; Reams v. Wilson, 147 N. C. 304; Fleming v. Hatton, 92 Kans. 948; Culbertson v. Sheridan, 93 Kans. 268; Fuller v. Reed, 38 Cal. p. 110.
Ordinarily the amount of compensation to which a broker is entitled is ascertained by reference to the contract of employment, which usually either makes provision for a fixed price or sets forth a definite method by which it may be computed, as by declaring it shall consist either of a certain percentage of the price realized (93 Am. Dec. 175, note) or of all that is obtained over and above a fixed sum placed upon the property by the employer. Hayes v. McAra, 166 Mich 198; 35 L. R. A(N. S.) 116 and note. Moreover, where the broker is to receive all that he can get over a fixed price placed upon the property by his employer, the latter cannot reduce the amount to which the broker thus becomes entitled by selling at a price lower than that acceptable to the
A gambling contract is one by which two or more parties agree that a certain sum of money, or other thing, shall be paid or delivered to one of them on the happening or not happening of an uncertain event. A contract upon a contingency by which one may lose but cannot gain, or the other ean gain but cannot lose, is a wagering contract. When a contract is based upon something hazarded on the issue of some uncertain event it is a gamble and unenforceable. We have held all contracts which merely involved the difference between the quoted prices of stocks or commodities on the day of purchase and that of sale to be wagering contracts and unenforceable if the parties did not intend that the stocks or commodities mentioned in the contract were to be actually delivered. If an actual .delivery is intended the contract is not illegal but may be enforced.
If we separate the contract made between appellees Pumphreys and appellants Dowell and Beard into two parts, as the writing naturally indicates; that is to say, (1) the contract by which the Pumphreys agreed to give to Dowell and Beard, as commission, all the price realized from the sale of 494 acres of land over and above $16,-500.00; and (2) the contract by which Beard and Dowell undertook to guarantee the Pumphreys that 494 acres of their land would, on the following Monday at the sale, bring at least $16,500.00, we have two enforceable contracts within the sight of the law. It is not -infrequent that the owner of land will say to a broker, I will take $10,000.00 for my farm, and you can have all you sell it for above that price as your commission, and these contracts are always enforceable. 4 R. C. L., p. 332; Hayes v. McAra, 35 L. R. A. (N. S.), supra, 9 C. J., p. 581; Culbertson v. Sheridan, supra; Womack v. Douglas, supra; (Ky.); Futrell v. Reeves, supra. The second contract is also enforceable, for one may for a consideration insure or indemnify another against loss on account of any business transaction without contravening any law of the land. Such contracts are often before the courts and no vice is found in them. 20 Cyc., pp. 1404 to 1419, and notes; 12 R. C. L., pp. 1072-1081. If the contract when' separated into parts, as above suggested, is enforceable, will the joining of the two in a single writing corrupt and vitiate the transaction? We do not think so, and must therefore hold the contract enforceable.. The demurrer
2. The question as to what consideration Beard and Dowell are to receive under the contract is almost as difficult as the one as to whether the' contract is legal, as contended by appéllant, of void for immorality, as insisted by appellees. The Pumphreys contend that in no event could the brokers receive more than the $1,500.00 realized from a sale of the 300 acres of land over and above the $16,500.00 guaranteed by Beard and Dowell,' and that all the excess in land belongs to appellees. On the other hand, Beard and Dowell insist that the contract entitled them to all money and acreage realized from the sale of 494 acres over and above $16,500.00, and they want to read the contract as though it were in the following form: •
“In consideration of Beard and Dowell guaranteeing that 494 acres of the said 604 acres of land shall bring $16,500.00 said Josephine Pumphrey and husband agree that any • sum realized from the sale above $16,500.00, and any acreage left, if any, after said sum is raised by the sale of a part of the land, shall go to said Beard and Dowell. ’ ’
For appellees it is said that the court ordered only so much of the land sold as would raise a sum sufficient to satisfy the debt, interest and cost, and that the parties, when they entered into the contract under consideration, had said judgment in mind and entered into the contract intending that only so much of the land should be sold as would be required to raise $14,600.00. This seems hardly reasonable because if only land enough had been sold to raise $14,600.00 and Beard and Dowell were not to receive any part of the remaining land, they would have received no compensation whatever for their services, and would have been obligated for the balance of the $16,500.00 which they guaranteed. The contract seems to contemplate the sale of 494 acres of land; the whole tract advertised to be sold contained about 604 acres. The home farm which appellees desired to retain contained about 110 acres, so that when 110 acres are deducted from 604 acres there are left 494 acres. The Pumphreys by the contract intended to save to themselves the home place of 110 acres, and in order to do so they agree with Beard and Dowell that the latter could sell all of the remaining 494 acres and make it bring at least all of the indebtedness against the entire farm and
Judgment reversed for proceedings consistent with this opinion.