Doney v. Laughlin
| Citation | 94 N.E. 1027,50 Ind.App. 38 |
| Decision Date | 12 May 1911 |
| Docket Number | 6,976 |
| Parties | DONEY v. LAUGHLIN |
| Court | Court of Appeals of Indiana |
Rehearing denied December 20, 1911. Transfer denied March 29 1912.
From Wayne Circuit Court; Henry C. Fox, Judge.
Action by George A. Doney against Abram W. Laughlin. From a judgment for defendant, the plaintiff appeals.
Reversed.
Charles E. Shively and Ray Karr Shively, for appellant.
Abel L Study and Robert L. Study, for appellee.
Suit on a written instrument for the collection of a commission for the sale of real estate. Demurrer to the first paragraph of amended complaint, for insufficiency of the facts alleged, sustained, and on refusal to plead further, judgment was rendered against appellant, from which this appeal was taken, and the ruling on the demurrer is the error relied on for reversal.
The complaint alleges, in substance, that appellant is a real estate agent, and in 1907, at the special instance and request of appellee, sold certain real estate belonging to him; that on December 19, 1907, after said services were rendered, they had a settlement, and agreed upon $ 250 as the amount due from appellee for said services, and appellee then and there paid thereon the sum of $ 100, and executed the following written instrument:
Appellee failed and refused to pay said sum of $ 150, which is due and unpaid.
The principal questions discussed relate to the sufficiency of the written instrument to meet the requirement of the statute, and to the time of its execution. Section 7463 Burns 1908, Acts 1901 p. 104, reads as follows: "That no contracts for the payment of any sum of money, or thing of value, as and for a commission or reward for the finding or procuring, by one person, of a purchaser for the real estate of another shall be valid, unless the same shall be in writing, signed by the owner of such real estate or his legally appointed and duly qualified representative."
Statutes in pari materia, and those on the same general subject not strictly in pari materia, should be construed together when necessary to ascertain and carry into effect the legislative intent. Section 7463, supra, should be construed in connection with the various sections of our statute of frauds. Conn v. Board, etc. (1898), 151 Ind. 517, 525, 51 N.E. 1062; United States Sav., etc., Co. v. Harris (1895), 142 Ind. 226, 231, 40 N.E. 1072; Board, etc., v. Marion Trust Co. (1902), 30 Ind.App. 137, 140, 65 N.E. 589.
In determining the intention of the legislature in enacting a statute, we may look to the letter of the statute, to the statute as a whole, to the circumstances under which it was enacted, the mischief intended to be remedied, and to all like and kindred matters. Board, etc., v. Board, etc. (1891), 128 Ind. 295, 298, 27 N.E. 133; Hunt v. Lake Shore, etc., R. Co. (1887), 112 Ind. 69, 75, 13 N.E. 263.
It is contended by appellee that the statute, requiring that commission contracts for the sale of real estate must, to be valid, be reduced to writing, cannot be satisfied unless the agreement is reduced to writing before the services are rendered; that in the absence of such writing preceding the rendition of the services, the agreement is absolutely null and void, and a subsequent written contract on the subject is without consideration and void. On the other hand, it is contended by appellant that a verbal contract for a real estate commission, not being immoral nor against public policy, and a sale by an agent being such a transaction, that in the absence of the statute and independent of any express contract the law would imply an obligation on the part of the seller to pay for the fair and reasonable value of beneficial services. The verbal agreement is not void in the strict and extreme meaning of that word, and the services rendered thereunder afford an equitable consideration sufficient to support a subsequent written contract on the same subject. On slightly varying facts and similar statutes, it is beyond question that there is apparent authority for both of these positions, and hence the necessity of construing the statute, and especially the word "valid", to determine and make effective the legislative intent.
Section 7855 Burns 1908, § 5119 R. S. 1881, provides that suretyship contracts of married women are void as to them, but our courts have uniformly held that such contracts are voidable and not void, and that a married woman, to obtain the benefit of the statute, must plead coverture and suretyship. Lackey v. Boruff (1899), 152 Ind. 371, 377, 53 N.E. 412; Shirk v. Stafford (1903), 31 Ind.App. 247, 251, 67 N.E. 542.
In construing our statute declaring that usurious contracts are void as to the usurious interest, such contracts are held to be only voidable pro tanto. Studabaker v. Marquardt (1876), 55 Ind. 341, 347; Lemmon v. Whitman (1881), 75 Ind. 318, 329, 39 Am. Rep. 150.
It has been held that the words "void" and "invalid", when used in regard to contracts not immoral nor against public policy, usually mean voidable at the option of one of the parties, or some one legally interested therein, and that such construction leads to fewer errors than that which ascribes to those words the meaning of absolute nullity for any and all purposes. State v. Richmond (1853), 26 N.H. 232; Mutual Benefit Life Ins. Co. v. Winne (1897), 20 Mont. 20, 49 P. 446; Pearsoll v. Chapin (1862), 44 Pa. 9; Ewell v. Daggs (1883), 108 U.S. 143, 2 S.Ct. 408, 27 L.Ed. 682; Kearney v. Vaughan (1872), 50 Mo. 284; 8 Words and Phrases 7334, 7335.
In the case of Ewell v. Daggs, supra, on page 150, the court, by Justice Matthews, said: "A distinction is made between acts which are mala in se, which are generally regarded as absolutely void, in the sense that no right or claim can be derived from them; and acts which are mala prohibita, which are void or voidable, according to the nature and effect of the act prohibited."
It has also been held that Mutual Benefit Life Ins. Co. v. Winne, supra. See, also, Fletcher v. Stone (1825), 3 Pick. 250; Veeder v. McKinley-Lanning Loan, etc., Co. (1901), 61 Neb. 892, 86 N.W. 982, 986; Van Shaack v. Robbins (1873), 36 Iowa 201; Denny v. McCown (1898), 34 Ore. 47, 54 P. 952.
Our statute of frauds (§ 7462 Burns 1908, § 4904 R. S. 1881) provides that no action shall be brought in certain cases, unless the contract, or some memorandum or note thereof, is in writing, and such obligations have uniformly been held to be voidable and not void. This section, being § 1 of the act of 1852, clearly relates to the remedy and proof, and not to the contract itself; but the mischief sought to be remedied is practically the same as that of the statute relating to real estate commission contracts. Schierman v. Beckett (1882), 88 Ind. 52; Day v. Wilson (1882), 83 Ind. 463, 43 Am. Rep. 76; Wills v. Ross (1881), 77 Ind. 1, 40 Am. Rep. 279; Riley v. Haworth (1903), 30 Ind.App. 377, 64 N.E. 928; Washington Glass Co. v. Mosbaugh (1898), 19 Ind.App. 105, 49 N.E. 178; Lowman v. Sheets (1890), 124 Ind. 416, 7 L.R.A. 784, 24 N.E. 351.
Section 7474 Burns 1908, § 4915 R. S. 1881, being § 12 of the act of 1852, provides that certain conveyances shall be void. Section 7479 Burns 1908, § 4920 R. S. 1881, being § 17 of the act of 1852, provides likewise; but the conveyances therein declared void are not absolutely void for all purposes, but may be avoided, on the conditions specified in the statute, at the suit of the injured party. Kitts v. Willson (1892), 130 Ind. 492, 29 N.E. 401; Kitts v. Willson (1895), 140 Ind. 604, 39 N.E. 313; Whitney v. Marshall (1894), 138 Ind. 472, 37 N.E. 964.
In the case of Wiggins v. Keizer (1855), 6 Ind. 252, 257, the court quoted from the case of Wennall v. Adney (1802), 3 Bos. & Pul. 247, as follows:
"An express promise can only revive a precedent good consideration which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rule of law, but can give no original right of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision." Wills v. Ross, supra, 7; Comstock v. Coon (1893), 135 Ind. 640, 643, 35 N.E. 909; Mohr v. Rickgauer (1908), 82 Neb. 398, 117 N.W. 950, 26 L.R.A. (N. S.) 533; Stout v. Humphrey (1903), 69 N.J.L. 436, 55 A. 281; Freeman v. Robinson (1876), 38 N.J.L. 383, 20 Am. Rep. 399; Drake v. Bell (1899), 55 N.Y.S. 945.
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 later 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. But this enactment did not change the character of the services rendered,...
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