48 Ind. App. 173 | Ind. Ct. App. | 1909
Lead Opinion
“This is to certify that we, Amelia Wellinger and Joseph Wellinger, her- husband, of Clark county, Indiana, do hereby agree and bind ourselves to sell and convey to Thomas F. Crawford, of Clark county, Indiana, for and in consideration of the sum of $5,000, the following real estate, in Claris county, Indiana, to wit: Being the real estate conveyed by the Coombs heirs to Amelia Wellinger, by deed bearing date of the-day of-, and which deed is found of record in deed record-, at page-, of the deed records of Clark county, Indiana, and for a more particular description of said real estate reference is to be made to said deed record. Said Amelia Wellinger and Joseph Wellinger, her husband, hereby agree and bind themselves to execute and deliver to said Thomas F. Crawford a warranty deed to said real estate, and the parties to execute said deed to any person that said Crawford shall authorize and direct, upon tender and payment to the Wellingers by said Crawford of $5,000, provided that should said Crawford fail to pay said Wellingers the sum of $5,000 until after the expiration of January 1, 1906, then this writing and obligation shall be void, and said parties shall no longer be obligated to execute said deed. It is further agreed that said Amelia Wellinger shall pay said Thomas F. Crawford a commission of five per cent of the purchase price for the sale of said real estate. Amelia Wellinger. Joseph Wellinger.”
It is averred in the complaint that after the contract was entered into appellee was unable to find a purchaser willing to pay $5,000 for the premises, and that after appellants re
Section one of the act of 1901 (Acts 1901 p. 104, §7463 Burns 1908) provides that no contract for the payment of money as a commission for finding or procuring a purchaser for real estate shall be valid unless it is in writing, and is signed by the owner of the real estate. This act is supplemental to the statute of frauds, and should be construed accordingly. The contract sued on is an executory contract for the sale of land at a stipulated price by the appellants to the appellee. The only stipulation in the contract under which appellee could claim any right to a commission is the clause providing that “Amelia Wagner shall pay said Thomas F. Crawford a commission of five per cent of the purchase price for the sale of said real estate.” This clause must be construed in connection with all the other provisions of the contract, and, so construed, the agreement to pay a commission for the sale of the real estate must be held to refer to the complete execution of the executory contract, and the payment to appellants of the contract price of $5,000. The consideration for which the land was to be sold was a material part of the contract, and a change in the terms of the contract, by which the parties agreed to sell for a different consideration, was such a material variance from the contract as written that no action would lie upon such altered contract, unless the alteration was evidenced by a
The demurrer should have been sustained.
Judgment reversed, with instructions to the court below to sustain appellants’ demurrer to the third paragraph of complaint.
Rehearing
On Petition for Rehearing.
Appellee makes the point in his petition for rehearing that this court in its original opinion does not accurately state the substance of the complaint. He asserts that the complaint does not aver, as stated in the original opinion, that he was unable to find a purchaser for the premises who was willing to pay $5,000, and that after appellants received information from appellee that he was unable to find a purchaser for the premises at the price named, appellants agreed to waive the provisions in said contract that the lands should be sold for $5,000; but that the complaint on this subject alleges that appellee did attempt to sell said land for said $5,000, and did spend much time and money in an effort to sell said lands at said price; that the best offer he could obtain for said land was $4,500, which offer was made by Clarence and Gertrude Spencer ; that appellee thereupon advised appellants that $4,500 was the best offer he had so far obtained for said land, but advised that a better offer might be obtained later on.
The complaint clearly seeks to enforce the written contract as modified. It is insufficient upon this theory, for the reasons stated in the original opinion.
The petition for rehearing is overruled.