—Rоbert Frash (Frash) appeals from a judgment awarding Ronald G. Eisenhower d/b/a Lakewood Realty (Lakewood) $5,000.00 as a commission for services rendered in bringing together Frash and Phil Jоnes (Jones), the ultimate purchaser of Frash’s property.
We reverse.
The facts upon which the trial court’s judgment is based are established by admissions made in Frash’s answer to Lakewood’s сomplaint and testimony elicited in plaintiff’s case-in-chief.
Frash did not present any evidence. Lakewood’s evidence is that Frash contacted Jim Grady, one of Lakewood’s agents, concerning the sale of property owned by Frash, property that he had in fact purchased through Grady. Frash did not, and would not, sign any listing agreement, but did agree orally that if Grady found a purchaser Frash would pay a commission of six percent. Grady eventually found a prospective purchaser, Jones. Grady and Jones together formulated the terms of a proposition to submit to Frash, including a reservation that the offer was contingent upon Jones’ ability to obtain financing. Jones then typed thosе terms in the blank spaces of a standard proposition form used by Lakewood. Jones gave the proposition to Grady to submit to Frash and also grave Grady as an eаrnest money deposit a check in the amount of Ten Thousand Dollars ($10,000.00). Frash accepted the proposition as submitted and indicated his acceptance by filling in the blanks and signing the printed acceptance form on the back of Lakewood’s standard proposition form:
“As the owner of the property described herein Xhereby accept this proposition this _II day of April 1974 and X agree to pay Lakewood realty Jim Gradv Agent Real Estate Broker the sum of Five thousand dollars ($5,000.00) Dollars commission fоr services rendered in this transaction.”
The underlined portions of the above acceptance represent the blanks that were filled. Where and how the acceptance was completed is not *661 shown in the evidence, but Grady did testify that he agreed to the $5,000 commission rather than the six percent commission to facilitate thе sale (i.e., increase the money Frash would retain) and that Frash signed it in his presence.
Several days later Jones advised Grady that he was unable to obtain financing for the рurchase and would have to withdraw his offer. Grady, without prior consultation with or approval by Frash, returned the earnest money deposit. He subsequently advised Frash that the deаl had fallen through, and unsuccessfully resumed his search for a purchaser. He had no further contact with Jones. The evidence does not show that Grady or any other agent оf Lakewood investigated Jones’ statement denying his ability to obtain financing, or attempted to assist Jones in obtaining financing, or attempted to renegotiate the terms of the sale.
At some unspecified later date, according to an allegation of Lakewood’s complaint admitted in Frash’s answer, Frash transferred his interest in the propеrty to Jones. There is no evidence nor admission which provides any other facts concerning that transaction. 1 The theory of Lakewood’s complaint, and apрarently the basis of the court’s decision, is that the commission specified in Frash’s acceptance of Jones’ original proposition is due because Lakewood was responsible for getting Frash and Jones together. Under the evidence we cannot agree.
Since 1901 Indiana has had a statute rendering oral contracts for rеal estate sales commissions non-enforceable. As amended in 1913 that statute, now Ind. Ann. Stat. § 32-2-2-1 (Burns Code Ed., 1973), provides:
“No contract for the payment of any sum of money or thing of vаlue, as and for a commission or reward for the finding or procuring by one [1] person of a purchaser for the real estate of another, 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: Provided, That any general reference to such real estate sufficient to identify the same shall be deemed to be a suffi *662 cient description thereof. [Acts 1901, ch. 67, § 1, p. 104; 1913, ch. 219, § 1, p. 638.]”
The commission contract need not be written in advancе; it can, as in the case at bar, be included as part of the landowner’s acceptance of the prospective purchaser’s proposition.
Hatfield v. Thurston
(1928),
It is Frash’s position that the commission contract was and is conditioned upon consummation of the sale in aсcord with the terms of the proposition of which it is part; that it is neither a general contract to pay a commission on the sale of the land to any person other than Jones procured by Lakewood nor a contract to pay a commission upon the sale of land to Jones under any other terms; that when the sale describеd in the proposition was aborted, the commission contract was voided.
We agree with Frash. There is no written contract promising Lakewood a commission for seeking a purchaser, or for introducing Frash to a person who might be interested in purchasing the property, or even for finding a willing purchaser. The only written, and thus the only enforcеable, contract is the one wherein Frash both accepted
“this
proposition” and agreed to pay a “commission for services rendered in
this
transaction.” (Both emphasis added.) Since the commission contract was drafted by, and was the standard form used by, Lakewood, any ambiguity in that contract must be resolved in Frash’s favor.
McMahan Const. Co. v. Wegehoft Bros., Inc.
(1976),
*663
This is not to say that in all instances in which such a contract is used the seller may subsequently negotiate in person with a prospective buyer found by a realtor and thereby avoid payment of a commission. As was held in
Hatfield v. Thurston
(1928),
Lakewood had the burden of proving either that Frash sold the property to Jones under the term specified in the written proposition which was part of the written commission contract, or that Frash committed fraud by preventing Lakewood from negotiating mutually satisfаctory terms with Jones. There is no evidence that directly establishes or inferentially supports the finding of either fact. That the sale was finally consummated with someone who wаs first approached by a realtor is not in itself sufficient to entitle the realtor to a commission.
See, Conley v. Brummit
(1931),
The judgment is reversed and this cause is remanded with instructions to enter judgment for the defendant.
Staton, P.J., participating by designation concurs.
*664 Buchanan, C.J., concurs in result.
NOTE — Reported at
Notes
. The record contains interrogatories submitted by Lakewood and Frash’s answers thereto. They were not, however, introduced into evidence and so cannot be considered by either the trial court or this court.