95 Neb. 255 | Neb. | 1914
The action in this case was brought in the district court for Fillmore county to recover $80 commission for
The petition alleges that the defendant on or about the 11th day of August, 1908, entered into a written contract with the plaintiff; whereby the plaintiff agreed to find a purchaser for said land at the agreed price of $5,000, and the defendant agreed that the plaintiff should have as- a commission for said services all over and above the said sum of $5,000 secured for said land. The petition shows that the contract consisted of four letters, the first of which was written by the plaintiff to the mother of the defendant in Lucerne county, Pennsylvania; that in the letter the plaintiff inquired of the mother of the defendant, Mrs. John Ash, the widow of John Ash, deceased, who was the owner of the land prior to his death, if it was for sale, and at what price, and offered to secure a purchaser if the price was satisfactory. That letter is not copied in the petition, but its substance is set out, and in response to it the defendant wrote a letter to the plaintiff, which reads, in substance: “As I got your letter that you wrote mother, as I am settling up father’s estate, I will make you an offer to sell that eighty out there. You can have (all) over $5,000- yon get for it. There is three other parties after it. They haven’t set any price on it yet. Now I am buying the rest of the heirs out. I might move out on it myself. I remain Your friend, Charles C. Ash.” The plaintiff wrote to the defendant accepting the terms of his letter, and the letter is copied into the petition as follows: “Grafton,' Neb., Sept. 14, 1908. Mr. Chas, C. Ash, Wilkesbarre, Pa. Dear Sir: Yo^ur letter received this morning and I have sold your eighty for $5,000, the buyer to pay the commission. I have accepted $500 on the deal which is deposited at the Grafton State Bank for you. I inclose herewith contract which I have signed for you as agent, and also contract fór you to sign
The defendant contends that the letters do not constitute a contract in writing as provided by section 2628,
In Holliday v. McWilliams, 76 Neb. 324, it was held that the written contract required by this section might be evidenced by letters passing between the parties. In that case Bradley & Co. v. Bower, 5 Neb. (Unof.) 542, was cited with approval. In the last named case it was held that a contract sufficient to meet the requirements..of the statute might be created by letters between the parties, and might be sufficient though the same papers were not signed by both parties.
In Howell v. North, 93 Neb. 505, it was said in the body of the opinion: “The purpose of the statute was to protect landowners from the fictitious claims of real estate dealers who actually never sold the land they claimed to sell and never earned the commissions for which they were claimants, but it was never the intention of the legislature to protect the real estate owner against legitimate claims for services which he authorized in writing and which were honestly rendered.” This shows that the first objection is not well taken.
The second point is that there is no description of the . land in the letters as required by the statute. The letter written to Shoff by the defendant shows that the defendant had received Shoff’s first letter; the same being turned over to him by defendant’s mother. In that letter the land was described. There is therefore no uncertainty about the land intended. There was only one tract of land.
The third objection is that there is no amount of money set forth to be paid to the agent in case he should sell the land. The letter to Shoff specifically stated that he could have all over $5,000 that he might get for the land. That
We are unable to ascertain any sufficient reason for setting aside the judgment of the district court. The judgment of the district court is right. Judgment
Affirmed.