Becker v. Indiana Nat. Bank of Indianapolis

• Citation: 149 N.E.2d 832,128 Ind.App. 678
• Decision Date: 13 May 1958
• Docket Number: No. 18976,18976
• Parties: John W. BECKER, Appellant, v. The INDIANA NATIONAL BANK OF INDIANAPOLIS, and Susan F. Uhl, Co-Executors of the Estate of Albert E. Uhl, Deceased, Appellees.
• Court: Indiana Appellate Court

Page 832

149 N.E.2d 832

128 Ind.App. 678

John W. BECKER, Appellant, v. The INDIANA NATIONAL BANK OF INDIANAPOLIS, and Susan F. Uhl,

Co-Executors of the Estate of Albert E. Uhl,

Deceased, Appellees.

No. 18976.

Appellate Court of Indiana, In Banc.

May 13, 1958.

Rehearing Denied June 13, 1958.

Transfer Denied Sept. 29, 1958.

John W. Becker, Indianapolis, Kincaid & Goodwin, Lebanon, for appellant.

Stewert & Richardson, by Russell I. Richardson, Lebanon, for appellees.

KELLEY, Chief Judge.

The appellees, as co-executors of the last will and testament of Albert E. Uhl, deceased, brought action against appellant to recover a real estate sales commission, allegedly due the decedent, then a duly licensed real estate broker, for professional services rendered as such broker in connection with the sale of 194.67 acres of a 400 acre tract of land of which appellant was the equitable owner.

Upon request therefor by appellant, the court made and entered special findings of fact and conclusions of law. The findings of fact made by the court were, in substance, as follows:

1. Recites death of decedent, Albert H. Uhl, on June 5, 1953 and that appellees were duly appointed and qualified co-executors of his will and were such at the time the action was commenced.

2. That decedent was a duly licensed real estate broker and operated his business under name of Albert E. Uhl Company in Indianapolis.

3. That sometime prior to January 8, 1953, the Board of Trustees of Indiana University, as owner of approximately 400 acres of land known as the 'A. C. Harris Farm' in Hamilton County, Indiana, entered into an installment contract with the appellant by which it agreed to sell the real estate to appellant and on January 8, 1953, the latter was in possession thereof and owned an equitable interest therein.

4. That on or about January 8, 1953, decedent and appellant entered into a written agreement designated as a Listing Contract whereby appellant employed decedent to sell said real estate under exclusive right to do so, including appellant's interest therein, for $160,000, under the terms and conditions set forth in Exhibit A to appellees' complaint.

5. That on March 3, 1953, A. Harold Weber and Vincent Rush, through their attorney, C. B. Dutton, made a written proposition to appellant through the decedent, to purchase 200 acres, more or less, of said acreage for $80,000, upon certain terms and conditions set out in the written proposition contained in the written instrument designated as Exhibit B made a part of appellees' complaint; that decedent submitted said proposition to appellant for acceptance or rejection, and appellant accepted said written proposition in writing and promised in writing signed by appellant to pay decedent a commission of 5% of the consideration paid for said real estate, described in said Exhibit B.

6. That thereafter appellant caused a survey of said real estate described in said written proposition to be made and exact acreage was determined to be 194.67 acres. The consideration actually paid by purchasers and accepted by appellant was $77,868 and exact commission payable to decedent was $3,893.40.

7. That decedent employed J. & L. Agency, Guy Stafford, and Joseph Walker, duly licensed real estate dealers in Indiana, to assist him in finding a purchaser for said real estate and agreed to divide the commission upon following basis, Uhl Company 50%, J. & L. Agency 16.66%, Stafford 16.66%, Walker 16.66%. Appellant agreed to such arrangement and on May 5, 1953, signed a written memorandum acknowledging said parties as his brokers and agreeing to pay 5% commission and agreeing to prorate the same on said basis. That a copy of said memorandum designated 'Receipt' is attached to appellees' complaint and made a part thereof as Exhibit C.

8. That decedent did, on or before the 3 day of March, 1953, sell said 194.67 acres of land to Weber and Rush, who, by their agent and attorney, C. B. Dutton, duly executed the written proposition and said written proposition accepted by appellant by his signature thereto.

9. On or about June 15, 1953, the terms and provisions of said written proposition were complied with and balance of purchase price was paid in full; that final settlement was had between appellant and the Trustees of Indiana University and they were authorized and did convey title to said real estate directly to said purchasers, and title was conveyed to A. Harold Weber, Trustee, and the deed was recorded, giving date and record.

10. That the real estate 'described in the written proposition and in the deed of conveyance, and which was the subject of the transaction between plaintiffs' decedent and defendant, John W. Becker, is the same identical real estate for which consideration was paid by the purchasers and for the sale of which defendant, John W. Becker, promised to pay decedent a real estate commission.'

11. On or about June 26, 1953, appellant 'paid the J. & L. Agency, Inc., Guy Stafford, and Joseph Walker * * * the commission due them * * * but refused to pay the appellees as co-executors of the estate of said decedent * * * any part of said commission for the sale of Defendant's (appellant's) interest in said real estate.'

The conclusions of law stated by the court on the facts found were as follows:

I. That the law is with the plaintiffs herein and that the plaintiffs are entitled to the real estate commission agreed to be paid by defendant in the sum of $1,946.70, together with interest thereon at the rate of 6% per annum from June 21, 1954, to the date of judgment herein.

II. That the plaintiffs in this cause of action are entitled to judgment in the sum of $2,199.76 principal and interest against the defendant herein and the plaintiffs are, by operation of law, trustees of said sum of money for the benefit of the persons beneficially entitled to receive the same under the Last Will and Testament of Albert E. Uhl, deceased, by reason of the assignment heretofore made upon the closing of said estate.

On September 7, 1956, the court entered its judgment for appellees and on October 6, 1956, appellant filed his motion for a new trial. On motion of appellees, the motion for new trial was stricken from the files as not having been filed within thirty days from the date of decision. This poses the first question for determination.

The record is somewhat confusing as to the date on which the findings were made and filed. The motion for a new trial must, of course, be filed within thirty days from the time the special findings of fact are made and filed. Carper v. Peter & Burghard Stone Co., 1937, 104 Ind.App. 191, 195, 8 N.E.2d 1020. It appears from the record, as corrected by certiorari, that an entry of the aforesaid findings and conclusions was 'filed and made' on August 30, 1956, in the Civil Order Book of the Boone Circuit Court. The record also shows that on September 7, 1956, 'Pursuant to said request the court now makes and files herein its special findings of facts and states its conclusions of law thereon, as follows, to-wit (H. I.) * * * and the Court having heretofore stated and filed in this case its special finding of facts, and stated its conclusions of law thereon, and the same having been heretofore duly entered of record, the court now enters judgment thereon accordingly.'

In ordering said new trial motion stricken from the files, pursuant to the motion therefor, the court apparently considered that the special findings were made and filed on August 30, 1956. We must indulge every presumption, consistent with the record, in favor of...