Day v. West

• Decision Date: 23 March 1978
• Docket Number: No. 3-576A108,3-576A108
• Citation: 373 N.E.2d 935,176 Ind.App. 15
• Parties: Donald D. DAY d/b/a Day's Real Estate and Auction Service, Plaintiff-Appellant, v. William A. WEST and Anna West, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 935

373 N.E.2d 935

176 Ind.App. 15

Donald D. DAY d/b/a Day's Real Estate and Auction Service Plaintiff-Appellant, v. William A. WEST and Anna West, Defendants-Appellees.

No. 3-576A108.

Court of Appeals of Indiana, Third District.

March 23, 1978.

Phyllis G. Poff, Auburn, Howard E. Petersen, Richard K. Muntz, LaGrange, for plaintiff-appellant.

William J. Wood, Indianapolis, for amicus curiae; Wood, Tuohy, Gleason & Mercer, Indianapolis, of counsel.

Dudley W. Gleason, Jr., Angola, for defendants-appellees.

HOFFMAN, Judge.

Donald D. Day d/b/a Day's Real Estate and Auction Service brought an action against William A. West and Anna West for their failure to pay him a real estate commission. The issues raised concern whether the property description in the listing contract between the parties was sufficient to satisfy the requirements of IC 1971, 32-2-2-1 (Burns Code Ed.) ¹ and whether Day's performance was such as would require the commission payment.

Appellees have not favored this Court with an answer brief to support the judgment of the trial court. Nevertheless, they are given the benefit on appeal of that view of the evidence most favorable to the trial court's judgment, Keene v. City of Michigan City (1965), 137 Ind.App. 477, 210 N.E.2d 52, and reversal will ensue only if error is demonstrated in the record and by appellant's brief. Capitol Dodge et al. v. Haley et al. (1972), 154 Ind.App. 1, 288 N.E.2d 766.

In this context the record reveals that appellee William A. West owned seventy-nine acres of farmland in Troy Township, DeKalb County, Indiana. He discussed the possible sale of this farm with appellant after having had it previously listed with another realtor. Thereafter, Day, a licensed real estate agent, listed the West farm on November 1, 1971, for a one-year period for $29,500. Appellees William and Anna West signed the listing agreement with Day at that time which in pertinent part reads:

"In consideration of your listing for sale and undertaking to find a purchaser for the real estate described below, on terms noted below or other satisfactory terms, I or we hereby grant and give to you the exclusive right and authority to sell or exchange the same for a period from Nov. 1, 1971, to Nov. 1, 1972, for the price of Twenty-Nine Thousand-Five Hundred Dollars, $29500 . . .

"In the event you find a purchaser ready, willing and able to buy said real estate, or should said real estate be sold by or through you, ourselves or otherwise, during said time for the price and upon the terms named below, or for any other price or terms, or consideration acceptable to me or us, I or we hereby agree to pay you as commission a sum equal to 5 per cent of the sum for which said property is sold or exchanged, . . . and you are hereby authorized to accept an earnest money deposit with any offer to purchase said real estate. Said deposit may be retained by you until settlement is made. Should purchaser fail to complete said purchase, said earnest money deposit shall be applied first to your advertising and other expense and the balance shall be divided equally between us.

Although West testified that he could not read, he placed his signature on the agreement and indicated that he understood that the real estate commission would be 5% of the purchase price. Pursuant to this agreement appellant erected signs on the property and arranged to show the house on several occasions. On one of these, after making an appointment to have the door left unlocked, Day brought Mr. and Mrs. Leo McClure to the farm. They viewed the premises and as a result eventually signed a written agreement to purchase dated July 27, 1972. Mr. McClure withdrew $2,000 of the $8,000 in his savings account for a deposit and left it with Day, who in turn kept it in a real estate escrow account. Thereafter appellant made several attempts to have West sign the purchase agreement by taking it out to his farm. West refused to sign claiming that he wanted to retain a pipeline easement and mineral rights. On a subsequent occasion West refused to sign under any circumstances. An argument ensued and Day returned the deposit to the McClures'. Day then requested the commission of $1,475 and when West refused to pay, Day brought this action. After trial to the court, judgment was entered for West from which Day perfected this appeal.

The thrust of appellant's argument focuses on his two responses to the defense posture taken at trial. The first of these is that the listing agreement conformed with all of the requirements of IC 1971, 32-2-2-1, supra, and specifically that there was a description of the property sufficient to support the Wests' obligation to pay the agreed upon commission. Appellant relies upon the description of the property as "Located in Troy Township, DeKalb County, Indiana . . . one mile north McClellan Church on Bellefountain Road between Hamilton and Edgerton." This together with the identification of various buildings and barns located thereon is said to be adequate to satisfy the statutory requirement that "any general reference to such real estate sufficient to identify the same shall be deemed to be a sufficient description thereof."

The chief element in a real estate brokerage contract is the employment of an agent by the seller. As stated in Doney v. Laughlin (1911),50 Ind.App. 38, at 44, 94 N.E. 1027, at 1028, 1029:

"The object of the legislature in enacting the statute requiring real estate commission contracts to be in writing was in general the same as that which led to the enactment of our statute of frauds, viz., to avoid frauds and perjuries, and the latter is especially for the protection of those selling real estate through agents, to avoid conflict as to who, if any one, is entitled to the commission, and definitely to fix the amount to be paid. In enacting the statute, the legislature plainly provides that a contract for a real estate commission is invalid, or incapable of legal enforcement, unless in writing signed by the person obligated or his authorized agent."

With Acts 1913, ch. 219, § 1, p. 638, the statute was changed to its present form by the addition of the proviso under consideration which is: "That any general references to such real estate sufficient to identify the same shall be deemed to be a sufficient description thereof."

Drawn to this Court's attention in this context is Hutchinson v. Borum (1922), 78 Ind.App. 214, 135 N.E. 179, as it applies to the adequacy of a real estate description in light of the listing agreement herein.

The court in that case seized upon the additional language as an intendment to strengthen the requirements of a real estate description in order to avoid the need for parol evidence. Accordingly, Hutchinson held a street address to be an inadequate description stating, "(t)he evident purpose of the statute is to prevent fraud and perjury . . ." by...