Clifford v. Meyer

• Decision Date: 11 May 1893
• Citation: 34 N.E. 23,6 Ind.App. 633
• Parties: CLIFFORD et al. v. MEYER et al.
• Court: Indiana Appellate Court

6 Ind.App. 633

34 N.E. 23

CLIFFORD et al.

v.MEYER et al.

Appellate Court of Indiana.

May 11, 1893.

Appeal from superior court, Marion county; N. B. Taylor, Judge.

Action by Henry Meyer and others against Miles Clifford and another for commission on sale of real state. Judgment was rendered in justice's court for plaintiffs, and on appeal the action was tried in the special term of the superior court, which rendered judgment in favor of plaintiffs, and defendants appeal. Affirmed.

Vincent G. Clifford and Wilber F. Browder, for appellants. Merrill Moores, for appellees.

REINHARD, C. J.

The appellees, who are real-estate agents in the city of Indianapolis, instituted this action against the appellants before a justice of the peace to recover a commission for procuring a purchaser for certain real estate of the appellants. The cause was appealed to the superior court, where at a special term there was a trial, and special finding by the court, resulting in a judgment in favor of appellees for $75.

The first assignment of error at general term was the insufficiency of the complaint to state a good cause of action. The complaint is sufficient to withstand the attack thus made upon it. It avers that the appellants were the owners of the real estate for the sale of which the commission is claimed; that the appellees were real-estate brokers in the city of Indianapolis, where the said real estate was situated, and that appellants, about July 1, 1889, placed said real estate in the hands of appellees for sale; that appellees duly advertised the same for sale by notices published in the daily newspapers of said city; that thereafter, and in response to said advertisements, one Roxanna Robertson, wife of William Robertson, called upon the appellees, and requested to be shown said property, and to be told the price of the same; that appellees took said Roxanna Robertson to said property, and showed it to her, and stated the price at which it was for sale, and at her request gave her the name of the appellant Vincent G. Clifford, one of the owners of said real estate; and that afterwards, to wit, on the 30th day of October, 1889, said Roxanna purchased said property from the appellants for the sum of $2,100, the said property being conveyed by the appellants to said William and Roxanna Robertson. Appellees aver that they are entitled to a commission of $73 for finding a purchaser for said property, as aforesaid, but that said appellants have not paid them anything whatever for their services. Wherefore they demand judgment. In actions commenced before justices of the peace, if the complaint contain sufficient substance to apprise the adverse party of the nature of the demand, and to bar another action for the same thing, it is sufficient, even on demurrer. Milhollin v. Fuller, 1 Ind. App. 58, 27 N. E. Rep. 111; Watson v. Conwell, 3 Ind. App. 518, 30 N. E. Rep. 5; Smith v. Heller, 119 Ind. 212, 21 N. E. Rep. 657; Anderson v. Lipe, 114 Ind. 464, 16 N. E. Rep. 833. The complaint would be sufficient if drawn in the form of an ordinary merchant's account, thus: “Miles Clifford and Vincent G. Clifford, Dr., to Henry Meyer and William Gordon, for services rendered as real-estate brokers in finding a purchaser for the sale of a house and lot in the city of Indianapolis between July 1, 1889, and October 30, 1889, $73.00.” Rev. St. 1881, § 1461; Milholland v. Pence, 11 Ind. 203. The above statement, and more, may easily be extracted from the complaint, and it therefore sufficiently conforms to the statutory requirement. The only error assigned in this court is that the superior court, in general term, erred in affirming the judgment of the court in special term. One of the errors assigned in the superior court was that the court in special term erred in its conclusions of law on the special findings of the facts.

It appears from the facts found specially that on July 1, 1889, the appellants were the owners in fee simple, as tenants in common, of the premises described in the complaint, and the appellees were associated together in business as real-estate brokers in the city of Indianapolis, Ind. That on or about said day the appellant Vincent G. Clifford (who had charge of said property, and controlled the same for himself and his coappellant) went to the office of the appellees, and placed said property in their hands for sale. He informed Gordon that the price for which they wished to sell it was $2,300, but that they would consider a smaller offer; that the property had been in the hands of other real-estate agents for sale, but, as these did not appear to be doing anything with it, he and his brother wanted the appellees to take hold of it and sell it. He also told appellees that they need have no hesitancy in telling inquirers the names of the owners, as he would see that appellees were protected as to their commissions, in case they should find a purchaser. The appellants permitted the property to remain on the books of other real-estate agents for sale, but the appellees supposed they had the sole charge of its sale. The appellees entered the property for sale on their books, and advertised it at their own expense in the city newspapers. Roxanna Robertson, noticing the advertisement, went to the appellees' office to make inquiries with a view to purchasing. Appellees told her the price asked, and showed her the property, requesting her to make an offer for it. She asked who owned the lot, and was told by appellee Meyer that Vincent G. Clifford was one of the owners. Meyer called upon Mrs. Robertson several times for the purpose of selling her the property, but she made no offer for it directly to him, nor did she tell him that she intended to call on the owner with a view to purchasing. Miles Clifford is a resident of the state of Washington, and Vincent G. Clifford is, and then was, an attorney at law, with a law office on Washington street in the city of Indianapolis. The office of Clifford was also occupied by William F. Crawford, who had no sign outside of the office upon the door or window, but who did some real-estate and collecting business in the office, but had no connection with Clifford, other than as an occupant of the same office rooms. Mrs. Robertson called at Clifford's office shortly after the conversation with Meyer in which she had been told Clifford was one of the owners, and shortly after she had been shown the premises by the appellees, and asked to see Vincent G. Clifford. She was asked by said Clifford's law partner the nature of her business with Mr. Clifford, and stated she wished to inquire about his property on North West street, which she understood was for sale, and was informed that Mr. Clifford was not in the office, and that the property was in charge of the said Crawford, to whom she was referred by Browder, the law partner. Crawford took her to see the lot, and she gave him a written offer of $2,100 for the property, which offer had been prepared by said Vincent G. Clifford. This offer was accepted by appellants about the middle of October, 1889, and within a day or two afterwards the appellees for the first time informed the said Vincent G. Clifford that Mrs. Robertson had come to their office in response to their advertisement to inquire about said property, and that appellees had shown it to her, and told her that Vincent G. Clifford was one of the owners thereof, and the price asked, and had requested her to make an offer for the same, and claimed the commission for the sale in case it was consummated. A deed was prepared by the appellants, and executed and delivered to said Roxanna Robertson October 30, 1889, conveying the property to her for the consideration of $2,100, which was paid by her. After the delivery of said deed, and about two weeks after notice from appellees of their claim for commission for the sale to Roxanna Robertson, the appellants paid said Crawford a commission of $37 for selling said property, and it was before said deed was delivered by appellants to Mrs. Robertson, and before the payment of said sum by the appellants to Crawford, that appellees notified appellants as above found, and stated and demanded their commission for services in procuring said purchaser. The appellees' services in procuring the purchaser for said lot are of the value of $73, no part of which has been paid.

From these facts, the court drew the following conclusions of law: (1) That the appellants are liable to the appellees for the commission in the amount for which the property was sold to Roxanna Robertson; (2) that the appellees are entitled to recover from the appellants the sum of $73, the amount found by the court to be the value of the commission on said sale, or the value of the services of appellees in procuring said purchaser; (3) that the appellants are also liable for the costs of this action. To each of these conclusions the appellants excepted, and over their motion for a new trial judgment was rendered on the findings.

It is contended by appellants' counsel in argument that in no event could there have been a joint liability of the appellants, for the reason that they were tenants in common, and that the only liability they could have incurred concerning their real estate is a separate one, and to the extent only of the interest each had in the premises. The position is not tenable. While it may be conceded that a marked distinction exists in the legal status of partners, and that of cotenants, we know of no reason why such cotenants may not bind themselves jointly in any financial transaction concerning their lands. This might be done, we apprehend, even by persons owning different tracts of land separately. If the employment was a joint obligation, of course the liability is the same, and the fact that the parties are tenants...