80 Ind. App. 363 | Ind. Ct. App. | 1923
This is an action by appellee against appellant to recover the amount of a commission alleged to be due on a contract for the sale of the latter's farm, situated in the State of Illinois. The contract was made in said state, at a time when both of the parties were residents thereof, but was not in writing. After the alleged sale, which was consummated in said state, appellant became a resident of this state, and was such when this action was commenced. The amended complaint is in a single paragraph to which a demurrer for want of facts was overruled. After issues were joined the cause was submitted to a jury for trial, resulting in a verdict in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and thereupon judgment was rendered in favor of appellee. This appeal challenges the two rulings of the court stated above.
This is in accord with the general rule, stated in the earlier case of Soundheim v. Gilbert, Assignee (1888), 117 Ind. 71, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St. 23. It is clear that a parol contract for the payment of a commission for the sale of real estate is not immoral, and appellant does not so contend. He does contend, however, that the enforcement of such a contract is forbidden by positive law, and cites §7463 Burns 1914, Acts 1913 p. 638, as applied in the case of Price v. Walker (1909), 43 Ind. App. 519, 88 N. E. 78, in support thereof. That section provides: “That no contract for the payment of any sum of money, or other thing of value, as and for a commission or reward for the finding or procuring, by one 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 * * * .” In the case last cited this court was asked to hold that a parol contract, made in the State of Kentucky, for the payment of a commission for the sale of real estate and personal property jointly, for a sum in gross, was enforceable in this state, but it refused to do so by holding, in effect, that said §7463 Burns 1914, supra, was a positive statute, which would be violated by the enforcement of such a contract. That case supports appellant’s contention, but we cannot adhere to it, in the particular stated, for the following reasons: It is obvious that said section has no extraterritorial force, and hence cannot be considered in determining the validity of contracts made in other jurisdictions. It does not purport to limit the application of the principle of comity, but relates to a formality respecting the contracts mentioned therein—a matter governed by the law
True, a statute might have been enacted which would have so far changed the rule of comity, as to forbid the courts of this state from enforcing parol contracts for the payment of commission for the " sale of real estate, governed by the laws of other states. Such a statute would have been conclusive in favor of appellant’s contention, as the enforcement of a contract like the one in question in a court of this state, in the face of such legislative inhibition, would be clearly a violation of positive law. However, said section bears no evidence of any such purpose, and should not be construed as having any such effect. Our conclusion finds support in the case of Chicago, etc., R. Co. v. Thompson (1906), 100 Texas 185, 97 S. W. 459, 7 L. R. A. (N. S.) 191, 123 Am. St. 798, from which we quote the following: “It is too well settled to require citation of authority that the statutes of a State have no extraterritorial operation, and can not invalidate contracts made and to be performed in other jurisdictions. The courts of this State might be forbidden by the laws of the State, in the absence of con
For the reasons’ stated the case of Price v. Walker, supra, is disapproved, in so far as it may be construed as holding that a parol contract for the payment of a commission for the sale of real estate, governed by the laws of a sister state, violates said §7463 Burns 1914, supra.
Appellant finally contends.that the enforcement of a contract like the one under consideration is against the public policy of this state, and hence the decisive
As said by the court in the case last cited: “Our own scheme of legislation may be different. We may even have no legislation on the subject. That is not enough to show that public policy forbids us to enforce the foreign right. A right of action is property. If a foreign statute gives the right, the mere fact -that we do not give a like right is no- reason for refusing to help the plaintiff in getting what belongs to him. We
In a comparatively recent case, the Supreme Court of this state recognized the danger of unnecessarily sacrificing the rights of individuals, through the guise of protecting the interests of the public, by quoting the following statement with approval: “Without minimizing the importance of the doctrine that contracts should not be enforced if they contravene public policy, many courts have cautioned against recklessness in condemning contracts as being in violation of public policy. Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the trans
Turning, now, to the sources of evidence of what constitutes the public policy of a state with reference to a given subject, as enumerated in the case last cited, viz.: “Its constitution, its statutes, the practice of its officers in the course of administration and the decisions of its courts of last resort,” we find nothing in this state, which requires us to condemn the contract in question, as being against its public policy, unless we construe said §7463 Burns 1914, supra, as so declaring. A statute may have that effect, as stated in the case of Vandalia R. Co. v. Kelley (1918), 187 Ind. 323, 119 N. E. 257. But, before so construing a statute, we should be fully convinced of a legislative purpose to effect such result, as the just principles of law, which holds every man to a fair and full performance of his contract, where he has received a valuable consideration, should not be regarded lightly and its application withheld, where doubt exists in that regard. We see no sufficient reason for holding that said §7463 Burns 1914, supra, was intended to be declarative of a public policy, which would require the 'courts of this state to refuse to enforce contracts like the one under consideration, under the principle of comity. This statute, without thus extending its effect, fully protects the interests of all whose contracts for the payment of commissions for
Judgment affirmed.