Fleming v. Bishop

• Decision Date: 15 February 1929
• Docket Number: No. 13352.,13352.
• Parties: FLEMING v. BISHOP.
• Court: Indiana Appellate Court

165 N.E. 252

FLEMING

v.BISHOP.

No. 13352.^*

Appellate Court of Indiana, in Banc.

Feb. 15, 1929.

Appeal from Superior Court, Elkhart County; W. B. Hile, Judge.

Action by George W. Fleming against Frank Bishop. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions.

Emil V. Anderson and William E. Wider, both of Elkhart, for appellant.

Raymer & Olds, of Elkhart, for appellee.

LOCKYEAR, J.

The error relied upon for reversal of this case, as alleged, is that the court erred in sustaining the appellee's demurrer to the appellant's complaint. This action was upon a broker's contract for commissions for selling real estate.

A demurrer was filed to the complaint, and the memorandum thereto challenges the sufficiency of the description of the real estate to comply with section 8048, Burns' 1926 (Acts 1913, p. 638, c. 219), pertaining to contracts to pay a commission for sale of land requiring the same to be in writing, whereby the General Assembly of Indiana sought to amend Acts 1901, p. 104, c. 67, § 1, by adding to it the following clause: “That any general reference to such real estate sufficient to identify the same shall be deemed to be a sufficient description thereof.”

The contract is dated “Elkhart, Indiana, April 18, 1927, Address, Elkhart, Indiana,” and the description of the real estate to be sold is as follows: “I own and do hereby place in your hands for sale or exchange the following real estate in Elkhart county, state of Indiana, the property described on the reverse side of this card,” as follows: “Owner's address R. R. No. 6, Box 134, 13 acres Concord Township. 3 miles south on Prairie Street Road; thence east 3/4 mile to Pleasant Plain road or end of pavement on Pleasant Plain Read, West Side, Section 21, 7 room house fair barn, chicken house, smoke house, and coal house, 1 1/2 acres strawberries, grapes, 30 apple trees, 3 cherry trees. Mortgage $2,000.00 to Mrs. Leonard, due 3 years, privilege 3 more years 7%. Pay $50.00 on principal each month, interest payable monthly.”

[1] The office of a description is not solely to identify the land but also to furnish a means of identification. It is only where the question remains a matter of conjecture what property is intended that instruments affecting land will be held void for uncertainty. It often happens that contracts of this character are entered into hastily and under such circumstances as to make it impossible to obtain the specific description for inclusion in the contract. Anderson v. Wilstrup, 34 Cal. App. 771, 168 P. 1150. See Hines v. Copeland, 23 Cal. App. 36, 136 P. 728. The Supreme Court of Washington, where the statute (Rem. Code 1915, § 5289), “providing that an agreement authorizing the employment of a broker to sell or purchase real estate for compensation or commission shall be void unless in writing, signed by the party to be charged,” holds to the strict rule of description as in conveyances of real estate. It will be noted that this statute has nothing to say as to what shall be a sufficient description. Nance v. Valentine, 99 Wash. 323, 169 P. 862;Rogers v. Lippy, 99 Wash. 312, 169 P. 858, L. R. A. 1918C, 583.

[2][3] A much greater liberality is allowed in construing and curing defective descriptions in broker's contracts than in a deed of grant of land, for, so far as the statute of frauds is concerned, the terms of the employment are the essential part, and such contract will not be declared void merely because of a defect, uncertainty, or ambiguity in the description of the property to...