Berryman v. Childs
| Decision Date | 05 June 1915 |
| Docket Number | No. 18171.,18171. |
| Citation | 98 Neb. 450,153 N.W. 486 |
| Parties | BERRYMAN ET AL. v. CHILDS. |
| Court | Nebraska Supreme Court |
Since the only pleading required in the county court when exercising the jurisdiction of a justice of the peace is a bill of particulars, and the reply in the district court on appeal was to new matter in the answer and was not inconsistent with the petition, it should not have been stricken.
A printed and written contract between an owner of land and a broker or agent for the sale of land was signed by the owner by his own hand. The signature of the broker was printed. The broker acted upon the contract. In this, an action to recover a commission for the sale of the land described in the contract, the trial court excluded the paper as not being sufficient under section 2628, Rev. St. 1913, and refused an offer to show that the land was sold by virtue of the contract. Held, that the rulings were erroneous.
Appeal from District Court, Rock County; Dickson, Judge.
Action by James H. Berryman and another, partners as Berryman & Janney, against W. L. Childs. From judgment for defendant on directed verdict, plaintiffs appeal. Reversed.J. H. Berryman, of Bassett, for appellants.
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 thirty days by giving thirty 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 plaintiff 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.
[1] 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.
[2] 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...
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