Gill v. Eagleton
| Decision Date | 28 March 1922 |
| Docket Number | 21679 |
| Parties | THOMAS R. GILL ET AL., APPELLEES, v. GEORGE B. EAGLETON, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Burt county: CHARLES A. GOSS JUDGE. Reversed.
REVERSED.
B. C Enyart, for appellant.
J. A Singhaus, contra.
Heard before MORRISSEY, C. J., ALDRICH, FLANSBURG and ROSE, JJ., BROWN and ELDRED, District Judges.
The defendant appeals from a judgment rendered against him in the district court for Burt county for a balance of commissions alleged to be due the plaintiffs as real estate brokers.
The first contention urged is that the trial court erred in overruling the defendant's general demurrer to the petition, which defendant asserts sets forth a cause of action falling within the inhibition of section 2628, Rev. St. 1913. This necessitates a consideration of the allegations of the petition. The plaintiffs allege that at the time in question they were engaged in the real estate business; that the defendant was the owner of 68 acres of land (describing it) "which he listed with plaintiffs at $ 50 an acre net to him, and in the event of plaintiffs negotiating an exchange of said land for other property, plaintiffs were to have, as their commission, all they were able to obtain for said premises above that price, which said agreement, with respect to said exchange, was oral between plaintiffs and said defendant;" that one Frank W. Olinger "was the owner of a gasoline tractor plow outfit, which he was anxious to dispose of in an exchange for real estate, and he had the same listed with plaintiffs at the price of $ 1,000;" that they brought the defendant and the said Olinger together "and negotiated an exchange of said tractor plow outfit, at the price of $ 1,000, to said defendant for said premises above described, which was priced to said Olinger at $ 75 an acre, or $ 5,100, and said defendant and said Olinger entered into a written contract of exchange on said day upon the above basis, and the said defendant received upon said contract from said Olinger the sum of $ 500 in cash, and it was provided in said contract that the sum of $ 1,100 should be paid to him in cash upon March 1, 1915, and that said defendant would convey said premises to said Olinger upon said date, and receive back from him a mortgage upon said premises for the balance in the sum of $ 2,500, due in three years from said date, bearing interest at 5 per cent. per annum; " that, in accordance with said written contract, in addition to the $ 500 cash mentioned, the defendant received $ 1,100 in cash on March 1, 1915, and a note for $ 2,500 secured by mortgage on the premises, at the time of the transfer of the real estate by the defendant to said Olinger; that they, "by agreement with said defendant, took over said tractor outfit upon the date of said exchange in part payment upon their commission as above set forth, at the agreed value of $ 1,000, and have since sold and disposed of the same and applied the same thereon;" that the defendant has secured through foreclosure of the $ 2,500 mortgage certain other sums of money and a new note for $ 1,000 secured by mortgage on said land; that they have tendered to the defendant $ 385.25, "which is a much larger sum than is still unpaid to him, upon his net price of said land with interest, under his said contract of exchange entered into with said Frank W. Olinger," and have demanded that the defendant assign said $ 1,000 note and mortgage to them, but the defendant "refused to accept said tender, and further refused to make said assignment, and refused to acknowledge that said plaintiffs had any interest in said note and mortgage, and he then and thereby converted the same wholly to his own use and benefit;" that they renew their tender; and they pray that the court decree an assignment of said $ 1,000 note and mortgage to them, or award them judgment for $ 700 and interest for the remainder due them for commissions.
It will be observed that the petition alleges that whatever contract existed between the plaintiffs and the defendant was oral, and the plaintiffs make no contention in this court that there was a written contract. They assert that the petition alleges an oral contract whereby the defendant agreed to give them as their commission all that they secured above $ 3,400 for the exchange of his land, that the transaction that was consummated as a result of their efforts was an exchange, as distinguished from a sale, and that therefore section 2628, Rev. St. 1913, does not apply. The defendant contends that the petition is a laborious and verbose attempt to convert a real estate sale into an exchange, and that it states a cause of action that is barred by section 2628, Rev. St. 1913, which provides:
"Every contract for the sale of lands, between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent, and such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent."
We are faced in the first place, therefore, with the duty of determining whether the transaction set forth in the petition was a sale or an exchange. Summarized, this transaction consisted of the transfer of 68 acres of land at a valuation of $ 5,100 for a gasoline tractor plow outfit at a valuation of $ 1,000, $ 1,600 in cash, and a note for $ 2,500 secured by a mortgage on the land transferred. The consideration for the land was wholly money or its equivalent, except the tractor plow outfit, which was valued at $ 1,000 and was taken by the plaintiffs by agreement to apply upon their commission. The defendant himself received no property of any kind, as distinguished from a money consideration.
The precise question presented has never been decided by this court. The plaintiffs contend that the cases of Lucas v. County Recorder of Cass County, 75 Neb. 351, 106 N.W. 217, and Nelson v. Nelson, 95 Neb. 523, 145 N.W. 1004, govern and determine the question in their favor. In the last-mentioned case the brokerage contract provided for the sale or trade of defendant's "town property or farm property or any property" that he might put in for a particular farm in Missouri. No part of the consideration was money and no fixed price was placed on any of the property. The transaction involved was treated as, and clearly was, an exchange. This court stated in the first paragraph of the syllabus that a contract to assist in securing an exchange of properties is not governed by section 2628, Rev. St. 1913; but in the later case of In Re Estate of Brockway, 100 Neb. 281, 159 N.W. 421, attention was called to the fact that this statement was not necessary and was dictum.
In the case of Lucas v. County Recorder of Cass County supra, the original contract between the owner and the broker was a written one providing for a "sale" of...
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