Clifford v. Meyer

• Citation: 33 N.E. 127
• Parties: CLIFFORD et al. v. MEYER et al.
• Decision Date: 17 January 1893
• Court: Court of Appeals of Indiana

33 N.E. 127

CLIFFORD et al.

v.MEYER et al.

Appellate Court of Indiana.

Jan. 17, 1893.

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

Action by Henry Meyer and another against Miles Clifford and another to recover commission on the sale of real estate. From a judgment for plaintiffs, defendants appeal. Affirmed.

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

REINHARD, C. J.

This action originated before a justice of the peace. The first assignment of error specifies that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges that on or about the 1st day of July, 1889, the defendants, Miles Clifford and Vincent G. Clifford, were the owners of a certain lot in the city of Indianapolis, describing it, upon which was erected a dwelling house; that the plaintiffs, Meyer and Gordon, were real-estate agents and brokers in said city; that at said time the defendants, through said Vincent G. Clifford, placed said real estate in the hands of the plaintiffs for sale, and that the plaintiffs duly advertised the same by notices published in the daily newspapers of said city; that thereafter, and in response to such advertisements, one Roxanna Robertson, wife of William Robertson, called upon plaintiffs, and requested to be shown said property, and to be told the price of the same; that plaintiffs took said Roxanna Robertson to said property, and showed her the same, and stated the price at which the same, was for sale, and at her request gave her the name of the defendant Vincent G. Clifford, and afterwards, to wit, on the 30th day of October, 1889, said Roxanna purchased the said property from said Cliffords, the defendants herein, for the sum of $2,100, the said property being conveyed by defendants to said William and Roxanna Robertson; and plaintiffs aver that they are entitled to a commission of $73, for finding a purchaser for said property as aforesaid, but that said defendants have not paid them anything whatever for their services. Wherefore, etc. There are many defects in the complaint, which, had the cause been commenced in the circuit or superior court, and tested by demurrer, would have been fatal to it. These infirmities are apparent, and need not be pointed out. But in justices' courts the rule is different. Suits are conducted there, usually, either by the parties themselves or by inexperienced attorneys who are not familiar with the technical rules of pleading, and the courts, recognizing this condition of things and accepting it, have held and do hold that much greater liberality will be indulged in such cases than in courts presided over by learned judges, and where the parties can have the benefit of equally learned and skillful counsel. Out of this liberal indulgence has grown the rule of pleading in cases commenced before justices, respecting the sufficiency of a complaint in an ordinary action for the recovery of money for services rendered, such as is presented by the complaint under consideration, viz. that if enough is set forth in such complaint to apprise the adverse party of the nature of the claim, and to bar another action for the same demand, it will be held sufficient, even on demurrer or motion to dismiss. 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. As is well known, the complaint in such case would be sufficient if it were in the form of an ordinary account, stating that the appellants are indebted to the appellees in the sum of $73 for services rendered them as their agents in the sale of a house and lot. The complaint contains this much, and more. We think under the rule stated the complaint must be held sufficient.

The next specification of error and argument in support thereof challenge the correctness of the court's conclusions of law from the special facts found. Among other things, the court found specially that the appellants were tenants in common of the real estate for the sale of which the commission is claimed. It was further found that the appellant Vincent G. Clifford had charge of the property, and controlled it for himself and his cotenant, and that for himself, and as agent for the other, he employed the appellees to make the sale. From this finding the court's conclusion was that the appellants were both liable. It is contended that this conclusion was erroneous, because cotenancies are not partnerships, and that the nature of the liabilities growing out of transactions in connection with such tenancies is separate, and to the extent only of the tenant's interest in the land. We do not think this position is tenable. While it must be conceded that a marked distinction exists between the legal status of partners and that of cotenants, we know of no reason why such cotenants may not bind themselves jointly in any transactions concerning their lands. This might be done, we apprehend, even by persons owning different parcels 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 in common will not impair their right to enter into a joint contract in a matter concerning their real estate. The court had ample warrant for this conclusion, and it committed no error in respect to it.

It is next insisted that a fatal variance exists between the complaint and the finding, from the fact that the conveyance, according to the finding, was made to Roxanna Robertson, while the complaint alleges that it was executed to Roxanna and William Robertson. The inconsistency is not a material one. The gist of the action is for the services rendered in finding a purchaser. It makes but little difference to whom the conveyance was actually made, if ...