Mohr v. Rickgauer

82 Neb. 398 | Neb. | 1908

Calkins, C.

This was an action upon a promissory note. The evidence tended to show that the defendant employed the plaintiff as broker to sell 480 acres of land, and orally agreed to pay him as commission for such services the sum of $1' an acre; that, after plaintiff performed such contract on his part, a dispute arose as to the amount which the plaintiff was entitled to receive, and to settle such controversy the defendant executed the note in question for the sum of .$200. The court below took the view that an oral contract to pay plaintiff a commission being unenforceable because of the provisions of the act of 1897 (laws 1897, ch. 57; Comp. St. 1897; ch. 73, sec. 74), such services did not constitute a sufficient consideration to support the note, and directed a verdict for the defendant. Prom a judgment entered upon this verdict, the plaintiff appeals.

The statute in question has been sustained, and it has been frequently held that, where the employment is Oral, there can be no recovery upon the contract (Allen v. Hall, 64 Neb. 256; Baker v. Gillan, 68 Neb. 368; Covey v. Henry, 71 Neb. 118; Danielson v. Goebel, 71 Neb. 300) ; nor upon a quantum meruit for services, performed (Blair v. Austin, 71 Neb. 401; Rodenbrock v. Gress, 74 Neb. 409; Barney v. Lasbury, 76 Neb. 701). Now, we have presented the question whether such services constitute a sufficient consideration for a written promise to pay. Like the statute of frauds, of which it is a virtual extension and enlargement, it was designed to exclude oral testimony as a means by which the rights of litigants could be determined in certain cases where experience has shown that it was particularly liable to abuse. Baker v. Gillan, supra. Po make a concrete application of the reason for the law, the legislature, premising that a liability might be wrongfully imposed upon a defendant by false testimony if it were permitted to be established by oral evidence, has provided that he shall not be charged except upon a written contract subscribed by himself. When, however, the defendant, after receiving the benefit of services, executes a written promissory note in payment thereof, it would seem that the reason of the law was fulfilled. The contract is then established by his own signature.

The object of the statute is, as we have seen, to prevent frauds and perjuries; and, while certain contracts are by the terms thereof declared void, the uniform construction placed upon the statute by the courts renders it not void, but merely unenforceable. Riley v. Bancroft’s Estate, 51 Neb. 864. It is within the principle laid down by Baron Parke in Earle v. Oliver, 2 Exch. (Eng.) *71, that, “where the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law, meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it.” This doctrine has been applied to cases where the consideration of a contract made by a feme sole was an unenforceable contract made by her while covert, as well as to cases where the consideration was an oral promise to answer for the debt of a third person unenforceable by reason of the statute of frauds. Goulding v. Davidson, 26 N. Y. 604; Rogers v. Stevenson, 16 Minn. 56; Wills v. Ross, 77 Ind. 1.

We are satisfied that the principle referred to applies to the case we are considering, and that the obligation of the defendant, while unenforceable so long as it remained in parol, was a sufficient consideration for his written promise to pay the same.

We therefore recommend that the judgment of the district court be reversed and the cause remanded for further proceedings in conformity with this opinion.

Fawcett and Root, CC., concur.

By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and the cause remanded for further proceedings in conformity therewith.

Reversed.