OPINION
LOCKYEAR, J.
This
was an action brought by appellant against the appellees on a
contract for commission for services in selling real estate
under the following contract to wit:
"Indianapolis, Indiana, March 14, 1928.
"For
and in consideration of the sum of one and no/100 Dollars,
the receipt of which is hereby acknowledged, I hereby grant
and give to Morris E. Conly of the City of Indianapolis,
Indiana, and his assigns, the sole and exclusive right and
option for the period of thirty days from this date, to sell
for us the following described real estate in Marion County,
Indiana, to wit: Lot No. 7 in J. S. Mustard's Broad
Ripple Add. at and upon the following terms and conditions,
to wit: Thirty-six hundred and seventy-five dollars ($ 3,675)
cash. One hundred and seventy-five dollars ($ 175) of said
consideration to be deducted and paid to Morris E. Conly
[and] any purchaser under this option is hereby authorized
and directed to deduct one hundred and seventy-five dollars
from the amount due us and pay to Morris E. Conly for his
services.
"In
the event that this option is exercised within said time, I
obligate myself to furnish a full and complete abstract of
title to said real estate, exhibiting in me a good and
indefeasible estate in fee simple, free and clear of
encumbrance except taxes for the year 1928 payable in 1929 and to execute and deliver a general
warranty deed in fee simple for said premises,
contemporaneous with the payment of said purchase price,
subject to the following encumbrances: Barrett Law assessment
for sewer in alley. This option to be effective must be
exercised in writing endorsed thereon, and by a written
notice addressed and mailed to me at the following address,
c/o L. W. Brummit, Mail Press, and in the event the same is
so exercised, I agree to furnish said abstract and to tender
said deed within days from the date said option is exercised.
"Broad
Ripple Christian Church
"George
W. Hawkins, Trustee
"Arthur
B. Cravens, Trustee
"L.
W. Brummit, Trustee."
Appellant
alleges in his complaint that he did, on a later date, and
within the time fixed by the contract, find a purchaser who
was ready, willing and able to purchase said property on the
terms and conditions aforesaid, and he notified the appellees
thereof. That the appellees thereafter sold said property to
the parties that the appellant introduced to them, but they
failed and refused to carry out the contract and failed and
refused to pay appellant the sum of $ 175 which they agreed
to pay, for which amount he prays judgment.
The
appellees filed an answer in general denial to the complaint.
There was a trial and finding for appellees. The error
assigned is the overruling of appellant's motion for a
new trial, which was on the grounds that the decision of the
court is not sustained by sufficient evidence and is contrary
to law.
Appellant
introduced in evidence a written proposition from the Board
of School Commissioners of Indianapolis as follows: "Mr.
Morris E. Conly, Agent. The Board of School Commissioners of
the City of Indianapolis, Indiana, hereby agrees to purchase
from the owner, or through you his agent,
the property known as Lot Number Seven (7) in J. S.
Mustard's Broad Ripple Add. in Marion County, in the
State of Indiana, now located in the City of Indianapolis,
Marion County, Indiana. The purchase price of said property
to be the sum of Thirty-nine Hundred ($ 3,900) Dollars, upon
the following terms, viz.: All Cash. Cash to be paid upon the
delivery of a good and sufficient warranty deed, as and when
bonds be sold by said board with the approval of the Board of
Tax Commissioners of the State of Indiana, to purchase said
before-described real estate. The matter of the issuance of
said bonds is now pending before said State Board of Tax
Commissioners, and said real estate [is] to be paid for out
of the proceeds of the sale of said issue of bonds when
authorized by said state Board of Tax Commissioners. Complete
possession to be given upon the delivery of the deed, said
real estate to be conveyed to said Board of School
Commissioners free and clear of all liens including taxes.
Said Board of School Commissioners, after the approval of
said issue of bonds, to be furnished, free of charge, as soon
as the same can be prepared, a complete abstract, certified
to date, showing a merchantable title to above described real
estate or a policy of title insurance guaranteeing the title
to above real estate for the full amount of the purchase
price.
"This
proposition to be binding on said board must be...