Barney v. Lasbury

• Decision Date: 17 May 1906
• Docket Number: 14,262
• Citation: 107 N.W. 989,76 Neb. 701
• Parties: JAMES E. BARNEY v. GEORGE B. LASBURY ET AL
• Court: Nebraska Supreme Court

107 N.W. 989

76 Neb. 701

JAMES E. BARNEY v. GEORGE B. LASBURY ET AL

No. 14,262

Supreme Court of Nebraska

May 17, 1906

ERROR to the district court for Sarpy county: ALEXANDER C. TROUP JUDGE. Reversed.

REVERSED.

O. C Redick, for plaintiff in error.

John F Stout and W. R. Patrick, contra.

ALBERT, C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

This is an action on a quantum meruit to recover for time expended by the plaintiffs in procuring a purchaser for certain lands belonging to the defendant. After the allegations that the plaintiffs are engaged in the business of buying and selling lands and conductors of a general real estate business, and that the defendant is the owner of certain real estate in Sarpy county, the petition contains the following: "(3) That said defendant employed these plaintiffs to find and secure for her a purchaser for said land at a price fixed by said defendant. That said plaintiffs expended considerable time in finding a buyer for said land and on or about the 8th day of September, 1904, secured for said defendant a purchaser for said land at the price named and agreed by said defendant and these plaintiffs; and said defendant entered into an agreement with said purchaser to sell to him the said land at the price named, and said purchaser paid to said defendant a part of said purchase price. That said purchaser was able, ready and willing to pay the balance of said purchase money upon the delivery to him of a deed conveying the title to said real estate as promised and agreed by said defendant, but, notwithstanding the fact that said purchaser so found and secured by these plaintiffs was ready, able and willing to carry out his part of the contract to and pay to said defendant the agreed price for said land, said defendant has refused to carry out her part of the contract to convey to said purchaser the title to said above described real estate. (4) Said plaintiffs say that the time expended by them in securing for said defendant a purchaser for her said land, and in aiding and assisting the closing up of said deal was and is reasonably worth the sum of $ 350. That said defendant has refused and now refuses to pay said plaintiffs for said time so expended by them in securing for her a purchaser for said land and there is now due said plaintiffs from said defendant the sum of $ 350." A demurrer to the petition was interposed, which was overruled by the court, whereupon the defendant answered, denying that she ever employed the plaintiff to find a purchaser for the land. The jury returned a verdict for the plaintiff, and judgment went accordingly. The defendant prosecutes error.

We are satisfied that the demurrer should have been sustained. The alleged agreement was oral. Section 74, ch. 73, Comp. St. 1905, is as follows: "Every contract for the sale of lands, between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent, and such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent." The foregoing section has been before this court several times, and the uniform holding has been that there can be no recovery by a real estate agent or broker on a verbal contract for the sale of real estate. Allen v. Hall, 64 Neb. 256, 89 N.W. 803; Spence v. Apley, 4 Neb. (Unof.) 358; Baker v. Gillan, 68 Neb. 368, 94 N.W. 615; Covey v. Henry, 71 Neb. 118, 98 N.W. 434; Danielson v. Goebel, 71 Neb. 300, 98 N.W. 819. In Blair v. Austin, 71 Neb. 401, 98 N.W. 1040, and Rodenbrock v. Gress, 74 Neb. 409, 104 N.W. 758, a recovery in each case was sought on a quantum meruit for services rendered by a broker to the owner of real estate in procuring a purchaser therefor, and the rule applicable thereto is thus stated in the head-note: "Services as a real estate broker, rendered for the owner of the land without a written contract, cannot be recovered for as such upon a quantum meruit." The present action, however, is grounded on the following, taken from the body of the opinion in the Blair case:

"In this case it does not seem possible that plaintiffs can have any recovery of commissions for making a sale. If they have incurred expenses in the transaction at defendant's request, and which have redounded to his benefit, they could doubtless recover for it as money laid out and expended for his benefit and at his request. If they have shown an absolute loss of time which could and would have been valuably employed, except for its use at defendant's request upon his employment, they could probably recover for that as time devoted...