Beahler v. Clark

• Citation: 32 Ind.App. 222,68 N.E. 613
• Parties: BEAHLER v. CLARK
• Decision Date: 30 October 1903
• Court: Court of Appeals of Indiana

32 Ind.App. 222

68 N.E. 613

BEAHLER

v.CLARK^*

Appellate Court of Indiana, Division No. 1.

Oct. 30, 1903.

Appeal from Circuit Court, Jasper County: S. P. Thompson, Judge.

Action by Barney Clark against William T. Beahler. From a judgment for plaintiff, defendant appeals. Reversed.

Hauley & Hunt, for appellant. Foltz, Spitler & Kurrie, for appellee.

BLACK, J.

The appellee sued the appellant upon an account for work and labor performed by the former for the latter. The appellant has presented on appeal the overruling of his demurrer to the complaint for want of sufficient facts and the overruling of his motion for a new trial. The case involves a consideration of the statute of March 5, 1901, providing that “no contract for the payment of any sum of money, or thing of value, as and for a commission or reward for the finding or procuring, by one person, of a purchaser for the real estate of another shall be valid, unless the same shall be in writing, signed by the owner of such real estate or his legally appointed and duly qualified representative.” Acts 1901, p. 104 (section 6629a, Burns' Rev. St. 1901). The complaint was in the form of a common count for work and labor performed by the appellee for the appellant at his special instance and request, a bill of particulars being filed with the complaint. Whatever may be said properly of items of the account shown by the bill of particulars, which indicate services of the appellee in seeking and finding a purchaser for land, there were some of the 20 items of the bill of particulars which did not show that the sums thereby charged were services rendered for such purpose, or in any way connected therewith. Thus there were items for services in writing letters, and in trips to a number of different specified places, and for trips to examine land. The question whether a motion to make the complaint more specific as to these items should have been sustained is not presented. The objection suggested to the complaint that it sought a recovery contrary to the statute above quoted therefore cannot be sustained.

There was a verdict in favor of appellee for $240. On the trial it appeared in evidence that the appellee, whose business was that of a real estate agent, rendered service in procuring a purchaser for land of the appellant, a farm of 240 acres, sold to a third person. Some of the items of the complaint related on their face to such services. As to a considerable number of the items of the bill of particulars no evidence was furnished. All the other items of the bill of particulars concerning which there was any evidence related to services which entered into and constituted parts of the service of procuring the purchaser of the land, and were rendered under an employment of the appellee by the appellant to procure such purchaser. The evidence showed that the appellant hired the appellee to bring buyers and to sell the appellant's farm; that there was a commission contract, a verbal agreement between the appellant and the appellee, which was that the former would allow the latter $240 for selling the place if the appellee could get $85 an acre, which was the price for which the land was sold. There was evidence, introduced over appellant's objection, as to the value of the services of the appellee. Goldstein v. Scott (Sup.) 78 N. Y. Supp. 736, was an action to recover the value of services which the plaintiff, in his complaint, claimed to have rendered for the defendant, at her request, as a broker in making an exchange of a parcel of real estate belonging to the defendant for another piece of property belonging to a third person, the services being alleged to be reasonably worth a certain sum, no part of which had been paid. An answer showed that the promise or request, if any, charged in the complaint, was made in another state (New Jersey), and that by a certain statute of that state it was provided “that no broker or real estate agent selling or exchanging land for or on account of the owner shall be entitled to any commission for the sale or exchange of any real estate, unless the authority for selling or exchanging such land is in writing and signed by the...