Folsom v. Callen, 18668

Decision Date23 January 1956
Docket NumberNo. 18668,18668
Citation131 N.E.2d 328,126 Ind.App. 201
PartiesWilliam J. FOLSOM, Appellant, v. Ida CALLEN, Appellee.
CourtIndiana Appellate Court

Brady & Watson, Muncie, Marshall, Hillis & Hillis, Kokomo, for appellant.

Jump, Noel & Lacy, Joseph A. Noel, Kokomo, for appellee.

KELLEY, Judge.

Appellant appeals from an adverse judgment entered for appellee, upon her motion therefor, at the close of appellant's evidence. By his complaint appellant sought to recover of appellee a commission which he alleged appellee agreed to pay him for the sale by him, as her agent, of a certain business known as 'Hotel Francis' in the City of Kokomo, Indiana, a going concern, owned by her.

The determination of the appeal turns upon whether appellant was a 'real estate broker' as defined in Acts 1949, Chapter 44, page 129 et seq., Burns' 1951 Replacement, Secs. 63-2401 to 63-2423, inclusive, and required to possess a license as therein prescribed. It is admitted by appellant that he was not licensed under the Act as a real estate broker.

The only evidence introduced at the trial was that put in by appellant. The parties are in dispute as to what the evidence establishes. Appellant claims that the evidence shows that he 'sold a business enterprise, goodwill and personal property only,' while the appellee contends 'That the appellant claims compensation for services in attempting to sell a going business enterprise consisting of a long term lease, fixtures, furnishings and good-will is an inescapable conclusion to be derived from the evidence.'

Appellant admits that the evidence discloses 'that defendant (appellee) was a leasee of the building (the hotel) and real estate in which and on which said business was conducted and that said lease had some 19 years of its total term unexpired, which said fact was a matter considered by the final purchaser in the consummation of the sale', but says that there is no evidence that said lease was sold or delivered to the purchaser nor that he had any authority granted by appellee to sell, assign, or deliver it to the final purchaser.

The only witnesses to testify were appellant and his salesman, Harry H. Humbert. The evidence pertinent to our inquiry and which must be construed favorable to the appellant, may be epitomized as follows:

Appellant testified, in substance, that he discussed with appellee 'the sale of the furniture and the lease and personal property'; that he asked her 'if she owned the furniture, the amount of the lease, the years, and number of baths in the hotel'; that he asked her how long the lease had to run, for 'I was selling furniture and fixtures' and 'You don't want to buy one in an empty building'; that 'she put a price on her furniture and lease and I quoted it for that'; that the matter of a lease is of significance in connection with the sale of a hotel business; that 'I was selling her furniture, fixtures and equipment and leasehold'; that he offered Mr. McCormick (a prospect but not the ultimate purchaser) the 'furniture and lease'; that he was not a licensed Real Estate Broker or Real Estate Salesman in Indiana.

Appellant's salesman, Harry H. Humbert, testified that on August 1, 1951, he wrote to appellee inquiring if she might be interested in selling 'the lease and equipment' of the Francis Hotel; that he afterward came to Kokomo and talked with appellee and that she then said 'What the price of the lease and furnishings were' and the price she wanted therefor; that the appellant afterward talked to...

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11 cases
  • Abex Corp. v. Vehling, 2-881A284
    • United States
    • Indiana Appellate Court
    • 19 Enero 1983
    ...original complaint, rather than the amended one, which validly set forth his present claim. Abex relies upon Folsom v. Callen (1956) 126 Ind.App. 201, 131 N.E.2d 328 in arguing that "[i]f Vehling's agreement did include the real estate, the whole agreement is unenforceable." Appellant's bri......
  • Lockridge v. Hale
    • United States
    • Kentucky Court of Appeals
    • 13 Enero 1989
    ...be licensed. Bonasera v. Roffe, 8 Ariz.App. 1, 442 P.2d 165 (1968). (Sale of tavern and leasehold in real estate). Folsom v. Callen, 126 Ind.App. 201, 131 N.E.2d 328 (1956). (Sale of hotel as going concern, plus leasehold). DeMetre v. Savas, 93 Ohio App. 367, 113 N.E.2d 902 (1953) (Sale of ......
  • Dubois v. Kepchar
    • United States
    • U.S. District Court — Northern District of Indiana
    • 15 Junio 1995
    ...as one of the jurisdictions that considers the transaction as a whole to be a real estate transaction. In Folsom v. Callen, 126 Ind.App. 201, 131 N.E.2d 328, 329 (1956), Folsom, not a licensed real estate broker, sued to recover a fee he alleged to be due him for procuring a buyer for the H......
  • First Federal Sav. Bank of Indiana v. Galvin
    • United States
    • Indiana Appellate Court
    • 12 Julio 1993
    ...question of first impression in Indiana. A previous statute defining "real estate broker" was applied to finders in Folsom v. Callen (1956), 126 Ind.App. 201, 131 N.E.2d 328. The court concluded the plaintiff was a real estate broker and subject to licensing requirements where the plaintiff......
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