50 Ind. App. 79 | Ind. Ct. App. | 1912
— Appellant brought this suit to recover a commission of $1,846, alleged to be due him from appellee on a written contract for the sale of appellee’s land.
• A demurrer was sustained to an amended second paragraph of complaint, to which ruling a proper exception was saved. Appellant refused to plead further, and judgment was rendered against him on said paragraph. Said ruling presents the only error relied on in the appeal. This paragraph, after averring that plaintiff was a real -estate broker engaged in the business of selling real estate, with his principal place of business at North Vernon, Indiana, and that the defendant resided in the city of Frankfort, Kentucky, avers, in substance, that in the spring of 1908, plaintiff entered into a written contract, whereby he undertook to find a purchaser for defendant’s farm of 1,846 acres in the State of Texas; that in ease defendant consummated a sale with such purchaser, plaintiff was to receive “a commission of one dollar per acre of said Texas farm, to wit: the sum of eighteen hundred and forty-six dollars; ’ ’ that said written contract was composed of three letters, viz.: (1) A letter bearing date of October 18, 1907, received by plaintiff in the spring of 1908, a few days after it had been mailed at the city of Frankfort, which letter is filed with the complaint as exhibit A, and is as follows:
“Office of R. K. McClure & Sons, Incorporated.
Frankfort, Ky. Oct. 19, 1907.
Dear Sir:—
Enclosed you will find description of a Texas farm, offered for sale at a very attractive price. To the agent with whose buyer I consummate a sale, at the price and terms mentioned, I will pay a commission of $1.00 an acre so soon as the terms of the sale are complied with, but I am in no event to be held liable for more- than one commission.
For further information address either the undersigned at Frankfort, Ky., or W. H. McClure, Weather-ford, Texas. In case you get any prospective customers*83 to go to look at this land, W. H. McClure is at Weather-ford prepared to show it.
Yours truly,
R. K. McClure.”
It is further averred that said letter was enclosed in an envelope directed to plaintiff in the name and style of W. W. Oleott; that with said letter there .was enclosed a typewritten description of said Texas farm, with the statement that it was offered at $16 per acre, and that time would he given on said deferred payments as buyer and seller might agree; that immediately on the receipt of this letter, plaintiff addressed and mailed to defendant, at Frankfort, a letter acknowledging the receipt of said letter, and accepting the employment therein, with the statement that he (plaintiff) “would undertake to find a purchaser for said Texas real estate according to the terms of said letter,” and that he would write in regard to prospective purchasers, and that defendant should come or send some one to North Vernon when notified. It is averred that this second letter was signed by plaintiff in the name and style of W. W. Oleott; that the same is in the possession and control of defendant, and that plaintiff has no copy, and for this reason is unable to file a copy of the same, but sets out the substance thereof; that a few days after plaintiff had mailed his letter, he received another from defendant, addressed to him in the name of W. W. Oleott, and the paragraph then sets out what is averred to be the substance of this letter which is, in effect, that defendant had received plaintiff's letter, and was glad that he would undertake to find a purchaser for said farm; that he (defendant) had not misrepresented, matters in his first letter; that he would consider good trades and keep good his word as expressed in his first letter, “if he made a sale tuith a purchaser found by appellant.” It is then averred that plaintiff undertook said employment, advertised said farm, and began negotiations to find a purchaser therefor; that he induced parties to visit said land,
Appellant’s inability to state the exact date of entering into said written contract, his inability to state the exact date of receiving either of said letters one and three; and of mailing letter number two, the loss of the envelope in which the first letter and paper containing description of real estate were sent to him, the loss of the said paper containing said description, the loss of the third letter, the fact that appellant had no copy of any of said lost papers, and his inability for said reason to file copies of either of said lost papers, are each and all specifically and certainly averred, so that no question is raised or presented on account of the absence of any of these technical averments necessary to account for the absence of copies of the alleged lost letters and paper, and the question in the case turns solely on the construction to be placed on, and the effect to be given to, the letter exhibit, and the averments as to the contents of the lost letters and paper.
Section 7463 Burns 1908, Acts 1901 p. 104, is as follows: “That no contracts for the payment of any sum of money,
It is expressly averred that the contract, was in writing, and in this regard the requirement of the statute is met, so that the questions here presented are, in their last analysis: (1) Is there enough in the letter exhibit, supplemented by the alleged contents of the lost -paper accompanying the same, together with the alleged contents of the two1 lost letters, to show a certain and definite understanding and agreement between appellant and' appellee? (2) If such agreement is, in fact, shown by such exhibit, lost letters and paper, do the averments of the complaint show such a performance of said agreement according to its terms and provisions as entitles appellant to the benefits of the same ?
In the case of Austin v. Davis (1891), 128 Ind. 472, 476, 26 N. E. 890, 12 L. R. A. 120, 25 Am. St. 456, the Supreme Court said with reference to contracts of the character here involved: “If a contract which comes within the statute of frauds can be extracted from correspondence between the parties upon the subject of the contract, the statute is satisfied.” See, also, Thames Loan, etc., Co. v. Beville (1885), 100 Ind. 309, 313; Roehl v. Haumesser (1888), 114 Ind. 311, 317, 15 N. E. 345; Wills v. Ross (1881), 77 Ind. 1, 40 Am. Rep. 279.
Under the averments of this paragraph of complaint, the subject-matter of the contract, namely, the farm offered for sale, its description, the terms on which it was offered, the amount which appellee agreed to pay to the agent with whose buyer he might consummate a sale, can be definitely and certainly ascertained.
Appellee in his brief says: “The primary question is whether the correspondence shows an agreement, upon which the minds of the parties met, as to description, terms, price, and commission, or whether the negotiations are inchoate and unperfected until something should intervene and be determined in order to give it full effect.” See Everitt v. Bassler (1900), 25 Ind. App. 303, 308, 57 N. E. 560.
We think the test here furnished a proper one, and that the contents of letter number one, supplemented by the averments of the complaint as to the contents of appellant’s letter of acceptance and the lost paper and letters, meet every requirement of the rule announced.
It is insisted by appellee that his first letter or proposition was nothing more than an invitation to the person to whom it was made to make an offer to the proposer. This contention is clearly against the import and meaning of the language of the proposition, especially that part of the same which is in the following words: “To the agent with whose buyer I consummate a sale at the price and terms named, I.
In the case of Chicago, etc., R. Co. v. Derkes (1885), 103 Ind. 520, 523, 3 N. E. 239, the Supreme-Court said on this subject: “The contract or bond, when it was first executed, was what is sometimes called an unilateral contract, or a proposition merely from the appellees to the appellant. But when, as shown by the facts stated in each paragraph of the complaint, such contract, bond or proposition, after its delivery by the appellees, was accepted by the appellant, and the affirmative acts on its part, called for and constituting the consideration of such contract, bond or proposition, were fully done, kept and performed by appellant, the appellees cannot be heard to claim there is any want of mutuality in the instrument. So far as that question is concerned, the affirmative acts of the appellant done and performed, as alleged, upon the faith of such contract or bond, made it thenceforward the mutual, valid and binding contract of each and all of the contracting parties.” See, also, Thiebaud v. Union Furniture Co. (1896), 143 Ind. 340, 344, 42 N. E. 741; Fairbanks v. Meyers (1884), 98 Ind. 92, 97.
As pertinent to this phase of the ease, we quote from the language of an instruction approved by the Supreme Court in the case of Thames Loan, etc., Co. v. Seville, supra: “It will be sufficient if the letter or letters containing the plaintiffs’ proposition were written at their request, or in their behalf, or with their assent, and that the contents of the letter or letters containing the answer to such proposition were communicated to the plaintiffs and assented to by them.”
It is further insisted by áppellee, in effect, that it was necessary for appellant to aver that he procured a purchaser who was ready and willing to buy “upon the terms proposed” or, “that he procured a purchaser who agreed to take such land at such price in exchange for other, and the
The Supreme Court in the ease of Storer v. Markley (1905), 164 Ind. 535, 537, 73 N. E. 1081, said: “The execution of the contract sued upon is conceded, and it is shown by the evidence that, in pursuance thereof, appellee
To the same effect are the following cases: Lockwood v. Bose (1890), 125 Ind. 588, 25 N. E. 710; McFarland v. Lillard (1891), 2 Ind. App. 160, 28 N. E. 299, 50 Am. St. 234; Clifford v. Myer (1893), 6 Ind. App. 633, 34 N. E. 23; Platt v. Johr (1894), 9 Ind. App. 58, 36 N. E. 294; Mullen v. Bower (1899), 22 Ind. App. 294, 297, 53 N. E. 790; Miller v. Stevens (1899), 23 Ind. App. 365, 370, 55 N. E. 262.
In the case of Mullen v. Bower, supra, this court approved an instruction containing the following language: “If appellant employed appellee to make sale of his farm, and agreed to pay him a commission for finding a purchaser at a fixed price, and if appellee or his agent found a purchaser, and if appellant sold the farm to such purchaser for a price less than fixed by him to appellee, he would be liable to appellee to pay the commissions agreed upon, if any.” The ease of Miller v. Stevens, supra, is applicable to the facts of this case, and the court in that case very clearly distinguishes between the line of cases relied on by appellee as supporting his contention and the class of cases within which the one at bar falls. We quote from that case at page 370: “There is a marked difference between a contract by a broker to furnish a purchaser to his principal and a contract to effect a purchase or sale. In the first instance the broker has earned his commission when he has introduced and brought together the principal and the proposed purchaser between whom a deal is perfected, and in the second instance it is the duty of the broker to perfect a sale upon the prescribed terms submitted to him by the principal before he is entitled to his commission. * * * If a broker who has property for sale is instrumental in bringing the
In the case of Provident Trust Co. v. Darrough (1907), 168 Ind. 29, 38, 78 N. E. 1030, the Supreme Court, speaking of §7463 Burns 1908, Acts 1901 p. 104, said: “The manifest purpose of the statute was to' protect owners of real estate against doubtful and conflicting claims for services as alleged agents in connection with real estate sales. * * * The operation of the statute will not be extended further than necessary to make its spirit and purpose effective. ’ ’
"We think it clear that the court erred in sustaining .appellee’s demurrer to the second paragraph of amended complaint. The judgment is therefore reversed, with instruc
Note. — Reported in 98 N. E. 82. See, also, under (1) 19 Cyc. 191, 219; (2) 9 Cyc. 298; (3) 9 Cyc. 299; 19 Cyc. 220; (4) 9 Cyc. 257; (5) 9 Cyc. 299; (6) 9 Cyc. 717; (7) 9 Cyc. 291; (8) 9 Cyc. 722; (9) 9 Cyc. 722; 10 Cyc. 274; (10) 31 Cyc. 333; (11) 19 Cyc. 219. As to the proof of employment necessary on the part of a real estate agent suing for commission, see 139 Am. St. 227. As to the necessity that a memorandum within the statute of frauds show the parties to the contract, see 13 Ann. Cas. 313. On the question what constitutes employment of broker which will entitle him to commissions otherwise earned, see 27 L. R. A. (N. S.) 786.