93 Neb. 505 | Neb. | 1913
This is an action to determine whether the plaintiff should recover a judgment based upon defendant’s alleged promise by letter to pay a commission for the finding of a purchaser for real estate sold in Colorado. The defendant at Hastings, Nebraska, wrote a letter to the assignor of the plaintiff at Lincoln, Nebraska, describing the land, which is near Akron, Colorado, and stating the terms of sale and price, and that he was willing to “allow’ a fair commission out of this.” When the case was presented in the district court, the defendant called the attention of the court to the demurrer contained in his answer, and also demurred ore tenus to the petition, and
It is contended that the facts will not support a judgment for the plaintiff, and section 10856, Ann. St. 1909, is quoted: “Every contract for the sale of lands, between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the. owner of the land and the broker or agent, and such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent.”
The defendant sets forth the letter which he wrote to the plaintiff. This letter, among other things, provides that the writer will give until March 1 to sell at the price named. Attached to his letter is a plat of the 19 quarters of land proposed to be sold. On this letter, as appears by the copy in defendant’s brief, is written the words: “Accepted, Jan. 10, ’07, Conti. Realty Co. T. K.” A copy of the letter, omitting the plat, is as follows: “Hastings, Neb. 1907. Continental Land Co., Lincoln, Neb. Gentlemen in reply to your of the 8 in regard to my ranch at Akron Colo. I hav 19 quarters all' in a body & lays within a mile & a ;]T of Akron that is the north side of it & has a fair ranch house and stable for several horses & a shed for a .140 cattle and a good wrell & mill all fenced & cross fenced & about 60 acres of farm land, all this land lays very nice and my price is 6 dollars per acre one half cash & one fourth in One year & balance to two years at 6 per cent. Will low a fair comishen out of this. Will only give til March 1, to sel at this price the reanch is leased till november 1 next so if you care to take & try & sel it al rite I will make a smaul plat of it.”
It is contended by the plaintiff that the only way by which the offer could be accepted was by the performance of its conditions; that is, finding a buyer for the land of the defendant at the price named and according to the terms designated. The petition contains a statement that
It is further alleged in the petition that on or about said date the said Kharas, as the agent of the said Continental Realty Company, at Akron, Colorado, sold said land to one George M. McCoid, and thereupon sent from Brush, Colorado, and caused to be delivered to the defendant, Milton B. North, the telegram of which the following is a copy: “Brush, Colo. 5:15 P, M. 1-16-1907,
When the defendant at Hastings, Nebraska, on the 15th of January, 1907, wrote to the Continental Realty Company at Akron, Colorado, that Mr. Healey had no contract to sell the ranch, and said that he was surprised to hear of Healey’s move, and that he would prosecute Healey if he attempted to sell the property, and that Healey could not have the property for sale, and this letter wTas sent in response to the one written to North by the Continental Realty Company the day before, the defendant recognized the claim of the plaintiff to sell the land, and was inclined
The contract in this case is made for the sale of land situated in the state of Colorado, and the contract is to be performed in that state. The petition seeks to recover the agent’s commission for work done in the state of Colorado. The statute of Colorado is shown by the petition. The contract does not seem to be in conflict with it. The contract is therefore valid under the laws of Colorado. It follows that a sufficient cause of action was stated in the petition. The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with this opinion.
Reversed.