23 Ind. App. 285 | Ind. Ct. App. | 1899
Upon petitions filed before the board of commissioners of Greene county such proceedings were bad that such board ordered the construction of a system of gravel and macadamized roads. To provide a fund for the payment of the construction of such roads .bonds aggregating in excess of $147,000 were issued by the board, under the provision of the statute. The appellees had been awarded the contract for the construction of the roads, and the county treasurer had sold to them $147,000 of such bonds at their face value. Upon such sale appellees did not pay the treasurer for such bonds, but took them in payment for the construction of the roads under their contract. Appellees then entered into a written contract with appellant, as a broker, to negotiate the sale of such bonds. The contract specified the terms upon which such bonds were to be sold, and for making such sale appellees were to pay appellant a commission of one-half of one per cent, on the aggregate amount of the sale. This contract contained the following provisions: “That said parties of the first part [appellees] agree that said party of the second part [appellant] shall have the sale of said bonds for ten days * * on £he following terms to wit: $5,000 of said bonds to be delivered and paid for as soon as the legality of said bonds is established to the satisfaction of the purchasers; $20,000 payable May 15, 1897.” Then follow the amounts and dates of the remaining payments. The contract further provides that “such party of the second part agrees to deliver said bonds to the purchaser free of expense to said parties of first part. In consideration of which said parties of the first part agree to pay said Thomas O. Owen for making said sale a compensation of one-half of one per cent., to be paid out of the second payment of money realized from such sale of bonds.” Appellant brought this action to recover commission for making the sale of bonds under the contract. The issues were joined' by numerous and voluminous pleadings, but as no questions are presented resting upon the pleadings, we do not deem it necessary to set
While the assignment of errors challenges the ruling of the trial court upon the demurrers to some of the pleadings, the only question discussed is the alleged error of the court in stating its conclusions of law. The appellees have not filed a brief.
A brief statement of the facts found will suffice for a proper determination of the only question for decision. The court found that appellant negotiated a sale of the bonds within the time and upon the terms prescribed under his contract; that the purchasers were ready, willing, and able to comply with the terms of their contract of purchase, and to pay for such bonds, but that they never did pay for the same, nor tender any money, nor offer to pay for them; that the county treasurer had sold said bonds to appellees and others, as contractors, in payment at par of the contract price of constructing said roads, to be delivered as the work progressed, upon proper estimates; that $7,000 of said bonds had been delivered to appellees; that the remaining bonds were in the possession of the county treasurer; that the said bonds were never delivered to appellant, nor by him to said purchasers, nor were they ever demanded of appellees by appellant; that nothing was ever paid by said purchasers to appellees for said bonds, and no offer was over made to pay for the same; that after such sale certain taxpayers of the county commenced an action in the circuit court of Greene county to enjoin the delivery of said bonds to appellants and all other persons claiming under them, on the ground that the alleged sale by the treasurer of said bonds to appellees was illegal and void; that appellees appeared to said action and resisted the granting of the -injunction prayed for; that said court upon final hearing'held said contract of sale illegal and void, and granted said injunction. Upon these facts the
Appellant argues that he performed the service required of him under his contract, i. e., he procured a purchaser for the bonds within the time and upon the terms prescribed; that such purchaser was ready, willing, and able to purchase the same, and pay for them according to the terms of the contract. Having done this, he insists that he earned his commission, and that his right of action can not be defeated by reason of the facts that the sale of the bonds to appellees had been declared illegal and void, and their de-. livery perpetually enjoined by a judicial proceeding, and the further fact that no payment by reason thereof had ever been' made by the purchaser to whom appellant sold. Our attention has been called by counsel in their argument to the line of authorities which declare that where an agent or a' broker is employed to make a sale of real estate, or to procure for the owner a purchaser, upon prescribed terms, who is able, willing, and ready to make the purchase, and he performs the service, his right of action for his commission can not ,be defeated because of the failure of title in the principal. Counsel insist that the rule announced in such cases is applicable here, and is of controlling influence, on the ground that when appellant made his contract with appellees the title to the bonds was in appellees, and, since he performed the services he engaged to perform, he is entitled to recover his commission, notwithstanding the fact that by a judicial determination it was declared that the sale of the bonds to appellees by the treasurer was illegal and void. We do not think the two classes of cases are parallel, and hence the rule that controls the one does not apply to the other.
We can not believe' that the decision of the question here presented hinges upon the question of title in or ownership of the bonds, but rather upon the express terms of the contract between the parties. By that contract appellant placed a limitation upon his right of recovery by agreeing that
In the case of McPhail v. Buell, 87 Cal. 115, appellant and appellee entered into a contract by which the latter agreed to pay to the former a Commission for negotiating the-sale of real estate, such commission to be paid when the purchaser should payr $20,000 of the purchase money-to appellee, and execute notes secured by mortgage for the residue. The sale was made, the notes and mortgage were excuted, but the purchaser failed to pay the $20,000. Upon these facts it was held that the failure of the purchaser to pay the money was a complete bar to any claim of the appellant for. commissions.
In Manton v. Cabot, 4 Hun 73, 6 Thompson & Cook 203, appellant sued upon the following contract: “Mr. Joseph P. Mantón. Sir: Provided you obtain for us a contract, for 600 tons more or less of horse railroad rail (said contract to be accepted by us), we hereby agree to pay you as fast as
These cases are so strongly in point that it seems to us they