Lowe v. Mohler
| Decision Date | 01 July 1914 |
| Docket Number | No. 8423.,8423. |
| Parties | LOWE v. MOHLER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; Henry C. Fox, Judge.
Action by Henry Lowe against Charles D. Mohler. Judgment for defendant, and plaintiff appeals. Affirmed.Brown & Beard, of New Castle, Robbins & Robbins, of Richmond, and John O. Spahr, of Indianapolis, for appellant. Fred C. Gause, of New Castle, for appellee.
Action in the Henry circuit court against appellee to recover commission due appellant according to the terms of a written contract. Various pleadings were filed, and later the venue was changed to the Wayne circuit court. There a third paragraph of complaint was filed alleging, in substance, the following facts: Appellee (defendant) was the owner of a farm in Henry county, Ind., which he was desirous of selling, and on June 24, 1910, asked appellant to procure a purchaser for same, stating he would pay him for his services in the premises the sum of $174. That in appellee's presence appellant then drew up a certain writing as follows:
“H. S. Lowe.”
That appellant read said writing to appellee, and asked appellant to sign his (appellee's) name thereto. That appellee said the contract as drawn up and read was all right, and for appellant to sign appellee's name and also his own name thereto. That accordingly, in the presence of appellee and with his full knowledge, approval, and consent, under and by his direction, appellant did sign the writing with appellee's name, and his own name. That a few weeks thereafter appellant found a purchaser for the farm, but had not yet produced or made him known to appellee, and at that time appellee, in consideration of appellant's producing said purchaser and completing the services as agent, agreed to abide by the terms of said written contract and pay the commission therein stated for his services, and did “then and there upon the consideration aforesaid fully ratify and approve said written contract and agreement and adopt the signature thereto appended as his own.” That appellant did produce a purchaser for the farm to whom appellee sold the land, executing a deed therefor on September 2, 1910. That appellee has failed and refused to pay appellant his commission, and the sum of $174 is justly due and owing him, for which amount he demands judgment and all other proper relief.
A demurrer to this paragraph of complaint was sustained. The cause was submitted upon the first paragraph of complaint, which we need not set out with particularity, as it declared upon the written contract above. At the close of appellant's evidence, the court, on motion, peremptorily instructed the jury to find for appellee. Judgment was rendered that appellant take nothing by his action and appellee recover of him his costs.
The errors assigned are the sustaining of appellee's demurrer to the third paragraph of complaint, the sustaining of appellee's motion to peremptorily instruct the jury to find in his favor, and the overruling of appellant's motion for a new trial.
[1][2] The question is properly presented in this case that the alleged written contract for the payment of commission for the sale of the real estate was not properly executed in accordance with section 7463, Burns 1908, of the statute of frauds. Our conclusion upon this proposition will determine all the questions properly presented upon the assignments of error argued by appellant.
The statute of frauds and perjuries, as its name...
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