Berryman v. Childs

• Decision Date: 05 June 1915
• Docket Number: 18171
• Citation: 153 N.W. 486,98 Neb. 450
• Parties: JAMES H. BERRYMAN ET AL., APPELLANTS, v. W. L. CHILDS, APPELLEE
• Court: Nebraska Supreme Court

153 N.W. 486

98 Neb. 450

JAMES H. BERRYMAN ET AL., APPELLANTS, v. W. L. CHILDS, APPELLEE

No. 18171

Supreme Court of Nebraska

June 5, 1915

APPEAL from the district court for Rock county: R. R. DICKSON JUDGE. Reversed.

REVERSED.

J. H Berryman, for appellants.

LETTON J. ROSE, FAWCETT and HAMER, JJ., not sitting.

OPINION

LETTON, J.

Action by real estate brokers to recover a commission upon a sale of land made for plaintiff. The trial court directed a verdict for the defendant. From a judgment based thereon the plaintiffs appeal.

In the spring of 1911 defendant employed the plaintiffs to procure a purchaser for 172 acres of land in Rock county, and at that time signed the following contract:

"I, W. L. Childs, of Carnes, county of Rock, state of Nebraska, have this day given Berryman & Janney the exclusive sale or transfer of the real estate as described hereon, which is owned by me, at the agreed price 53.00 per acre dollars. I hereby appoint and constitute said Berryman & Janney as my lawful agent, and authorize said Berryman & Janney to enter into written contract for me, on my behalf and in my name, for the sale of said real estate. I agree to make a good satisfactory deed and to give a clear abstract of title to said real estate, showing the title to be fully vested in me. In consideration of the services of Berryman & Janney in making such sale, transfer, sending me a buyer, advertising, or being instrumental in any manner, whatever, in selling or transferring said property, I agree to pay said Berryman & Janney out of the first payment a commission of 1.00 one per acre dollars, payable at the office of said Berryman & Janney. Any change in the price or terms agreed to by me shall work no forfeiture in the commission due said agent in sale or transfer of said property. I hereby reserve the right to terminate this agency at any time after 30 days by giving 30 days' notice in writing to said agent. Receipt of a duplicate of this agreement is hereby acknowledged. W. L. Childs, Owner.

"Said agency accepted on above conditions. Berryman & Janney."

A full description of the land was written on the back of the paper before signing. The paper is printed, but the words in italics are written.

In the answer the defendant admits that he listed the land described for sale with plaintiffs as his agents, and that the land was sold to one Parks as alleged. Other defenses were pleaded which are not relevant to the question presented in this court. Mr. Janney testified that Mr. Childs signed the contract after he had filled the blank spaces in the printed paper, and that the name "Berryman & Janney" appearing on the lower left hand corner of the exhibit was printed thereon by the order or instruction of the firm. The contract was offered in evidence. Defendant objected to its introduction for the reason that it was incompetent and shows upon its face that it was not signed by the broker or agent who is intended to be a party to said contract. The objection was sustained. Plaintiffs then attempted to prove that the land was sold by plaintiffs to Parks by virtue of this contract, and that no commission had been paid. This testimony was also excluded. A motion to direct a verdict for the defendant was then sustained, and a verdict and judgment rendered accordingly.

The district court struck out all of the reply except a general denial, on the ground that its allegations were not within the issues tried below. The pleadings in the county court are not in the record. Since a bill of particulars of plaintiff's claim is the only pleading required by statute in an action to recover less than $ 200, and since the matter stricken in the reply is not inconsistent with the petition and responds to new matter in the answer, we think it should not have been stricken.

It is argued that, since the contract was executed, a recovery can be had even though it was not in writing. The rule in this state is that a broker who has sold land for another cannot recover either on the contract or upon a quantum meruit for the value of his services unless he holds a written contract which satisfies the statute. Nelson v. Webster, 83 Neb. 169, 119 N.W. 256; Clark v. Davies, 88 Neb. 67, 129 N.W. 165.

We have not been favored with a brief by the appellee, but it seems apparent that the district court was of the opinion that the contract was not executed in accordance with section 2628 Rev. St. 1913: "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." Since the...