442 N.E.2d 366 (Ind.App. 1 Dist. 1982), 1-182A2, Shrum v. Dalton

Docket Nº:1-182A2.
Citation:442 N.E.2d 366
Party Name:Mose SHRUM and Oleavy Shrum, Defendants-Appellants, v. Asa E. DALTON, d/b/a Dalton Real Estate, Plaintiff-Appellee.
Case Date:November 15, 1982
Court:Court of Appeals of Indiana
 
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Page 366

442 N.E.2d 366 (Ind.App. 1 Dist. 1982)

Mose SHRUM and Oleavy Shrum, Defendants-Appellants,

v.

Asa E. DALTON, d/b/a Dalton Real Estate, Plaintiff-Appellee.

No. 1-182A2.

Court of Appeals of Indiana, First District.

November 15, 1982

Page 367

[Copyrighted Material Omitted]

Page 368

Martha S. West, New Castle, for defendants-appellants.

G.K. Hodson, H. Terrill Harvey, Millikan, Hodson & Harvey, New Castle, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Defendant Mose Shrum appeals from the decision of the Henry Superior Court granting plaintiff Dalton a real estate commission on the sale of Shrum's farm. We reverse.

FACTS

In April 1978 Mose and Oleavy Shrum 1 signed an exclusive listing agreement for the sale of their farm with Dalton Real Estate. The agreement was to be in effect for a six month period from April 4, 1978, to October 4, 1978. The listing agreement contained a commission clause giving Dalton five percent (5%) of the $85,000 listing price. An additional six (6) month period, running to April 4, 1979, was also included during which if the sellers sold to anyone with whom Dalton had put them in touch, Dalton would still collect his commission. On September 20, 1978, the Shrums accepted a written offer to purchase from Jay and Barbara Bramwell for $85,000. Large portions of the offer to purchase were not completed, apparently because the sale of the Shrum property was contingent upon the sale of two (2) properties owned by the Bramwells in order to raise the necessary funds. While all parties agreed this was a condition of the offer, it was not so recorded on the offer itself. The offer to purchase only indicated that it was contingent upon the Bramwells' ability to procure a loan commitment. The Bramwells did receive a commitment of $25,500 from the Federal Land Bank on October 16, 1978. The commission clause in the offer to purchase was completed in the amount of $4,250, which is five percent (5%) of $85,000. The offer to purchase did not stipulate a time during which the offer was to remain open. The Bramwells were unable to raise the necessary funds prior to April 4, 1979. On May 26, 1979, Mose Shrum agreed to take a second mortgage. The Bramwells subsequently sold one property and borrowed an additional $10,000 from Jay Bramwell's mother. This combination of financing enabled the Shrums and Bramwells to close on June 26, 1979. Upon learning of the closing plaintiff Dalton brought suit for his commission. The trial court awarded the commission and defendant now appeals.

ISSUES

Appellant presents two issues for review by this court. Since we reverse the decision of the trial court, we reach only the first of appellant's issues. Rephrased, the issue is as follows:

Does the Indiana Statute of Frauds prohibit the enforcement of a commission clause in an offer to purchase by the realtor where the contract between the parties is partly oral and partly written?

DISCUSSION AND DECISION

The trial court erred in awarding Dalton his realtor's commission.

Appellant argues on appeal that the statute of frauds precludes the enforcement of the commission clause in the offer to purchase. In order to raise the statute

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on appeal, the issue must first be raised at trial. Clarkson v. Department of Insurance of the State of Indiana, (1981) Ind.App., 425 N.E.2d 203, 206, trans. denied; Zeigler Building Materials, Inc. v. Parkison, (1980) Ind.App., 398 N.E.2d 1330, 1332. While appellant did not affirmatively raise the statute in a responsive pleading as required by the Indiana Rules of Civil Procedure, Trial Rule 8(C), it does appear from the record that the issue was tried by the implied consent of the parties. This is sufficient to preserve the issue for review by this court. Lawshe v. Glen Park Lumber Co., Inc., (1978) 176 Ind.App. 344, 346-47, 375 N.E.2d 275, 277-78; Hidden Valley Lake, Inc. v. Kersey, (1976) 169 Ind.App. 339, 342-43, 348 N.E.2d 674, 677, trans. denied. With this issue properly before us, we proceed to the question of whether the court erred in awarding the broker's commission based upon the contracts executed by the parties.

Indiana's legislative enactment of the statute of frauds requires that any contract for the sale of land be in writing. 2 Similarly, our legislature has long recognized that any commission for the sale of land by a broker is unenforceable unless in writing and signed by the party against whom the commission is sought to be enforced. 3 These requirements inure to the benefit of both the broker and seller of real property, because where a dispute arises as to either's performance, reference to the intent of the parties is readily available from the memorialization of the written contract. It is a general rule that the intention of parties to a contract is to be determined from the "four corners" of the document. General Insurance Co. of America v. Hutchison, (1968) 143 Ind.App. 250, 254-55, 239 N.E.2d 596, 599, trans. denied. Absent any ambiguity, this court will not construe the contract, Indiana Industries, Inc. v. Wedge Products, Inc., (1982) Ind.App., 430 N.E.2d 419, 423, trans. denied, but rather will give effect to the plain language of the document. Thus, where the contract is complete on its face, it will be enforced...

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