178 Ind. 36 | Ind. | 1912
This was an action to recover for the breach of a written contract, a commission for th.e sale of real estate. The cause was tried by the court, which made a special finding of facts and stated its conclusions of law thereon. Judgment for appellee against appellant Deborah Miller.
It is alleged in the complaint that on September 26, 1907, defendants were the owners of certain described real estate in Wabash county, Indiana; that on that date defendants employed plaintiff to procure for them a purchaser for the real estate at the price of $14,400, on terms of $500 cash, and the remainder either in cash or to be paid March 1, 1908; that plaintiff procured a purchaser for the land, one James Blake, and the latter and defendants entered into a written agreement on September 26, 1907, which contains the promise of defendants to pay plaintiff the sum of $160 for his services for procuring a purchaser and negotiating the sale.
A copy of the agreement is set out in the complaint, and is, in substance, as follows: In consideration of $14,400, $500 of which is to be placed in a bank in Wabash until the defendants place in such bank a warranty deed, duly executed, for the real estate (described in the agreement)
The contract further provides that on March 1, the'balance of the $14,400 shall be paid by Blake to Deborah Miller, and the deed for the land shall be delivered to Blake. The contract contains other provisions, which have no bearing on the issues in this cause.
It is alleged further that defendants accepted the sale negotiated by plaintiff, and on September 26, Blake paid to Deborah Miller $500, and with the knowledge of her co-defendants, she accepted the same and deposited it in the bank, and afterward, but before March 1, 1908, defendants executed and placed in the bank a warranty deed, pursuant to the terms of the contract, whereupon the rights of defendants to the $500 became absolute, and plaintiff’s right to the $160 became complete; that, thereafter, he demanded the same, payment of which was refused; that Deborah Miller has drawn from the bank the $500, and holds it, and refuses to pay to plaintiff the $160, after he had demanded the same. Judgment for $160 and interest is prayed.
failing to comply with said rule, appellant has waived such consideration. Hall v. McDonald (1908), 171 Ind. 9, 17, 85 N. E. 707; Isanogle v. Russey (1910), 174 Ind. 245, 247, 91 N. E. 938; Bennett v. Root Furniture Co. (1911), 176 Ind. 606, 96 N. E. 708.
For reasons heretofore given, the court did not err in its conclusions of law.
There being no reversible error in the record, judgment affirmed.
Note.—Reported in 98 N. E. 805. See, also, under (1) 31 Cyc. 639; (2) 9 Cyc. 377; 39 Am. St. 531; 71 Am. St. 176; 2 L. R. A. (N. S.) 783; (3) 19 Cyc. 220; on the question of the power of the legislature to require contracts for commissions for finding a purchaser for real estate to be in writing, see 33 L. R. A. (N. S.) 973; (4) 19 Cyc. 274; (5) 2 Cyc. 1014; (6) 19 Cyc. 287.