Isphording v. Wolfe

• Decision Date: 11 October 1905
• Docket Number: 5,450
• Citation: 75 N.E. 598,36 Ind.App. 250
• Parties: ISPHORDING v. WOLFE
• Court: Indiana Appellate Court

75 N.E. 598

36 Ind.App. 250

ISPHORDING v. WOLFE

No. 5,450

Court of Appeals of Indiana

October 11, 1905

From Marion Circuit Court (11,717); Henry Clay Allen, Judge.

Action by George Wolfe against Anna M. Isphording. From a judgment for plaintiff, defendant appeals.

Affirmed.

Barrett & Barrett, Powell & Smiley and Fred Bertram, for appellant.

Edenharter & Mull, for appellee.

OPINION

ROBY, J.

Action by appellee. Demurrer to complaint, for want of facts overruled. Answer in three paragraphs, demurrers to each of which were sustained, and general denial filed.

The issue thus made was tried without a jury, and the general finding made for appellee, upon which judgment was rendered. No evidence was introduced upon the trial by appellant. The determination of the appeal depends upon a single proposition, which is variously presented, i. e., whether a written contract to pay commission is shown conforming to the provisions of the act of March 5, 1901 (Acts 1901, p. 104, § 6629a Burns 1901). Appellant, a married woman, residing in Cincinnati, was the owner of certain Indianapolis real estate, which she desired to sell. Appellee, a real estate broker of Indianapolis, had endeavored to procure a purchaser for it. In this he was, after some time, successful, and submitted a proposition of purchase. If a written contract for the payment of commission exists, it is found in certain letters which passed between the parties in this action. On February 11, 1902, appellant wrote a letter as follows: "Mr. Wolfe, Dear Sir: Your letter received. I find that you are right concerning the taxes, but I think, if we sell at that figure, he should assume those taxes. Mr. Isphording said we had to. It's just as you say, if we sell we will avoid the taxes in April; also a new roof it needs now. So let me know by return mail what per cent you get, and all particulars. Yours very respectfully, Mrs. R. C. Isphording." On February 18 appellee procured a written proposition from his customer, and notified appellant thereof, concluding his letter as follows: "As to my commission, it will be the customary one: On the first $ 1,000, four per cent, or $ 40; on the next $ 2,000, three per cent, or $ 60; on the balance, $ 8,500, two per cent, or $ 170; total sale, $ 11,500, total commission, $ 270. Mr. Langenskamp's offer, of course, provides that you must deliver the property clear of any and all encumbrances. If you have an abstract to said real estate, you had better send it to me for continuation. If you have no abstract, authorize me to have one made. At all events, advise me at once of your decision. Yours truly, George Wolfe."

On February 21 appellant wrote as follows: "Mr. Wolfe. Dear Sir: Your letter of the 19th received. Sorry we have to let it go at that, but am anxious to sell now. Enclosed find abstract of title. I suppose it is necessary to hire an attorney to finish up matters. If so, we will hire a Mr. Hauck here, an acquaintance of ours. Expect to hear from you soon. Yours very truly, Mrs. R. C. Isphording. P. S. Sanders & Recker have possession until March 10."

On February 25 she wrote the following letter: "Mr. Wolfe Dear Sir: I have had a better offer from a Cincinnati man by far than you could give. Will you please be kind enough to return abstract of title and I will pay you for any trouble you went to. I am sorry, but you can not blame under the circumstances. Please send by return mail and...