Brown v. Maris

• Decision Date: 29 May 1958
• Docket Number: No. 18934,18934
• Citation: 150 N.E.2d 760,128 Ind.App. 671
• Parties: Edwin L. BROWN, Appellant, v. Frank MARIS, Appellee.
• Court: Indiana Appellate Court

Page 760

150 N.E.2d 760

128 Ind.App. 671

Edwin L. BROWN, Appellant, v. Frank MARIS, Appellee.

No. 18934.

Appellate Court of Indiana, In Banc.

May 29, 1958.

Rehearing Denied June 25, 1958.

Transfer Denied Sept. 24, 1958.

Karl Overbeck, Veedersburg, Ward S. Williams, Covington, Schortemier, Eby & Wood, Indianapolis, for appellant.

Wallace, Wallace & Mason, Covington, for appellee.

CRUMPACKER, Judge.

In this action appellant chose to stand on a contract which the appellee had breached and sued to recover the commission stipulated therein. The contract involved is what is known as a real estate broker's listing contract and reads as follows:

'Listing Contract 8-21-52

'To Edwin L. Brown Real Estate

'In consideration of your listing for sale and your services in undertaking to find a purchaser for the following described real estate in Liberty Township of Park County, State of Indiana, to-wit: 142 A, I hereby grant and give you the exclusive right to sell the same for a period of 7 mo. from date of this contract at and for the price of ..... Dollars. (25,000). Said consideration to be paid in the following manner: $5000 20 years to pay 4 1/2%. In the event you find a purchaser for, or that said real estate is sold by or through you, or otherwise, during said time for the price and upon the terms above stated, or for any other price or terms or any other consideration acceptable to me, or if sold within ninety (90) days after the expiration of this contract to anyone who has been shown said property by you; then, in consideration of your services tendered I hereby agree to pay you five per cent (5%) on the selling price. I also agree to furnish a complete abstract, showing a merchantable title to said real estate and warranty deed for same.

'/S/ Frank Maris.'

The appellant's complaint pleads the above contract and alleges that immediately after its execution the appellant advertised the land involved for sale, contacted and interviewed prospective purchasers one of whom he took into the country to view the property. That on November 18, 1952, while said contract was in full force and effect, the appellee sold said property to one Merrill L. Bannon and Ruth L. Bannon, husband and wife, for $25,000. That thereupon the appellant demanded of the appellee the sum of $1,250 'for his commission on the selling price of said real estate' but the appellee then and at all times since has refused to pay said commission or any part thereof wherefore the appellant prays judgment in the sum of $1,250 and interest at the rate of six percent per annum from November 18, 1952.

A demurrer for want of facts to this complaint was sustained on the theory that the action counts on the contract and no performance on the part of the plaintiff is alleged. The propriety of such ruling is the sole question presented by this appeal.

All of the cases upon which the appellant relies for reversal are of foreign jurisdictions and most of them hold in effect that a contract giving a broker the exclusive right to sell property during a definite and fixed time prohibits the sale of the property by any other person during that time, including the owner of the property, and if it is sold by another person, including the owner, the broker is entitled to the commission provided in the contract even though he had nothing to do, directly or indirectly, with the sale. In other words the mere fact that a broker has the exclusive right to sell a piece of property entitles him to the stipulated commission if the property is sold under any circumstances during the life of his contract. That is not and never has been the law of Indiana. This court said specifically in Thomas v. Hennes, 1922, 78 Ind.App. 275, 135 N.E. 392, 395, that the mere fact that a broker had an exclusive right to sell property 'would not entitle him to recover the commission he was to receive in the event he made a sale. Under such circumstances, his right of action, if one existed, would be for damages, resulting from a breach of the contract, and not for the amount earned in the performance of services thereunder. While that statement may not have been essential to the Thomas decision no court in Indiana has repudiated or criticized it either directly or indirectly and it is wholly in harmony with the rule stated in an annotation in 64 A.L.R. 410, and cases cited in support thereof. It clearly means that if a real estate broker has nothing more than the exclusive right to sell real estate and that right is breached and the broker fails to find an able and willing buyer before his contract expires his remedy is a suit for resulting damages. Therein all money laid out and expended in advertising and showing the property together with the value of the broker's time would be proper damages and, if he could have sold the property except for the owner's action in selling it himself, he could also recover damages measured by the stipulated commission.

It is suggested that the Thomas case contravenes ruling ...