Essex v. Millikan

• Decision Date: 20 December 1928
• Docket Number: No. 13020.,13020.
• Citation: 88 Ind.App. 399,164 N.E. 284
• Parties: ESSEX v. MILLIKAN et al.
• Court: Indiana Appellate Court

88 Ind.App. 399

164 N.E. 284

ESSEX

v.MILLIKAN et al.

No. 13020.

Appellate Court of Indiana, in Banc.

Dec. 20, 1928.

Appeal from Hendricks Circuit Court; Z. Dungan, Judge.

Action by Bert Essex against Frank M. Millikan and another, in which defendants filed a cross-complaint. From an adverse judgment, plaintiff appeals. Affirmed.Charles T. Hanna and Thomas A. Daily, both of Indianapolis, Otis E. Gulley, of Danville, and Taylor & Carter, of Indianpolis, for appellant.

Blessing & Stevenson, of Danville, for appellees.

McMAHAN, P. J.

Action by Bert Essex against Frank M. Millikan and Isaac Pinkus on an alleged oral contract to recover a broker's commission for negotiating a written lease on real estate owned by the defendants. The first paragraph of complaint alleges an agreement on the part of the defendants to pay plaintiff a 2 per cent. commission for procuring a 20-year lease. The second paragraph is one in quantum meruit. Appellees filed a cross-complaint asking damages on account of representation alleged to have been made by appellant. The cause was tried by the court.

The facts were found specially and are, in substance, as follows: The defendants, hereafter referred to as appellees, being the owners of certain real estate in Indianapolis, employed appellant to get them a tenant that appellees would accept, for which services appellees agreed to pay appellant a commission of 2 per cent. of the total amount of rental. On December 13, 1917, appellant informed appellees he had found a person whom he believed would be an acceptable tenant, and, in order to induce appellees to execute a lease to the proposed tenant, appellant represented to appellees that the proposed tenant had $20,000 on deposit in the National City Bank; that appellees on investigation found that such person had a deposit of only $22.25 in such bank; that thereupon appellees signed and delivered to appellant a lease in favor of the proposed tenant, but, because of the financial irresponsibility of the proposed tenant. appellees instructed appellant not to deliver such lease to the proposed tenant until he had furnished a satisfactory bond gauranteeing the payment of the rent and to secure appellees against any loss occasioned by the changes and repairs contemplated as set out in the lease; that appellant took such lease with the agreement that the same would not be delivered to the proposed tenant until such bond had been furnished; that such bond was never furnished; that the lease was never delivered to such tenant, nor did the tenant ever move into or offer to move into the property under the agreement between appellant and appellees. Appellant was to be paid for his services $750 when the tenant moved into the property, and the balance at the end of the first year of the tenancy. Appellees, when they made the changes in the building as mentioned in their cross-complaint, knew of the financial irresponsibility of the proposed tenant, and that he had not furnished the bond, which was a condition precedent to the delivery by appellee of the lease signed by them. Before commencing this action appellant made demand for payment of the amount of the commission which he claimed was due him. Upon these facts the court concluded, as a matter of law, that appellant was not entitled to recover on his complaint, and that appellees were not entitled to recover on their cross-complaint. Judgment accordingly, from which appellant appeals and contends the decision is not sustained by sufficient evidence, and error in admitting and excluding evidence.

In support of the contention that the finding is not sustained by sufficient evidence, appellant says the undisputed evidence shows that he induced Willis D. Williams to submit a proposition to appellees for the rental of the property; that appellees refused to accept such proposition, but as a counter proposition submitted to Williams a written lease in triplicate, which Williams accepted; that after such acceptance Williams and appellees each signed and acknowledged the lease, a copy of the same being delivered to appellees; that such lease has never been changed, rescinded, or released.

In opposition to this contention, appellees say, and there is evidence to support their contention, that, after appellant had submitted the proposition from Williams, they prepared a lease for the purpose of having the same executed; that appellant, appellees, and Williams met for the parpose of executing the lease; that, before the lease was signed by any one, the question of Williams' financial responsibility was discussed and investigated; that they refused to execute the lease unless Williams gave a guaranty bond, which the latter was not at that time prepared to give; that it was suggested by appellant that, since it was difficult to get Williams to come back to sign the lease, he sign and acknowledge the lease at that time; that, in accordance with the suggestion, the three copies of the lease were then signed and acknowledged, one of which copies was given to appellant to hold until Williams gave the bond, and that appellees at the time instructed appellant not to deliver the lease until the bond had been furnished; that Williams never furnished the bond, and never took, or offered to take, possession of the property; and that, as a matter of fact, the lease was never executed.

[1][2][3] The facts as found by the court are in harmony with appellees' contention, and, under the well-settled rule that this court will not weigh the evidence, the finding of the trial court must stand. Under the facts found, the lease was not intended to be effectual until the bond was furnished, was not signed by the parties with the intention that it be effective until the bond was furnished, and was never executed, in that there was no delivery of the required bond to appellees, or of the signed lease to Williams. If the proposed tenant was not acceptable to appellees without a bond guaranteeing payment of the rent, and no lease was executed because of the failure to provide such bond, appellant was not entitled to recover.

[4] Appellant next contends the court erred in refusing to allow him to prove the reasonable value of the services of an agent in procuring a tenant. The undisputed evidence, as given by both appellant and appellees, is that there was an agreement that appellant was to receive a 2 per cent. commission on the total amount of the rent to be paid. This being true, the amount of the commission in case of a recovery was fixed and controlled by the agreement, and could not be increased nor decreased by proof of the value of such services. There is no...