Lucas v. Cnty. Recorder of Cass Cnty.

• Decision Date: 20 December 1905
• Citation: 106 N.W. 217,75 Neb. 351
• Parties: LUCAS v. COUNTY RECORDER OF CASS COUNTY ET AL.
• Court: Nebraska Supreme Court

75 Neb. 351

106 N.W. 217

LUCAS

v.COUNTY RECORDER OF CASS COUNTY ET AL.

Supreme Court of Nebraska.

Dec. 20, 1905.

Syllabus by the Court.

Evidence examined, and held to warrant the decree of the trial court.

A sale is a transmutation of property, or a right, from one person to another, in consideration of a sum of money, as opposed to barters, exchanges, and gifts.

A written contract between the owner of real estate and a real estate broker for the “sale” of property, does not contemplate an exchange thereof for other property.

A subsequent oral contract, superseding or modifying one which the statute of frauds requires to be in writing, will be upheld, if executed.

Under the evidence, held, that a real estate broker has no just cause of complaint of an allowance to him of $300 as commission for services in the exchange of properties.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Cass County; Jessen, Judge.

Action by Thomas Lucas against the county recorder of Cass county and others. Judgment for plaintiff, and defendants appeal. Affirmed.

O. A. Williams, for appellants.

Byron Clarke, for appellee.

ALBERT, C.

This is a suit to restrain the recording of a certain deed or its return to the defendant Allison, and that said defendant be required to deliver the same to the plaintiff. It is alleged in the petition, that, at the date of the deed, the defendant Allison was the plaintiff's agent for the sale of certain real estate in the village of Wabash, in Cass county, and that said defendant falsely and fraudulently, and for the purpose of obtaining plaintiff's title to said real estate, represented to the plaintiff that he had a purchaser for the property, and that if the plaintiff would sign and acknowledge the same, leaving the name of the grantee blank, said defendant would take the deed to plaintiff's wife, who, at the time, was in a distant county, for her to sign it, and would give her the purchase money, which would become due the plaintiff on the consummation of the sale; but that if a sale was not made the deed should be canceled and returned to the plaintiff. That the plaintiff, relying upon said representations, signed and acknowledged a deed to said property, leaving a blank space therein for the insertion of the grantee's name, and orally authorized said defendant to fill in the name of the grantee, upon payment of the purchase price to plaintiff's wife, after she had joined in the execution of the deed. That the deed was presented to the plaintiff's wife, who, not understanding the agreement, refused to sign it, and the said defendant retained the possession thereof. It is further alleged that said defendant has presented the deed to the defendant county recorder, requesting that it be placed on the records of Cass county. That said recorder threatens to return the deed to the defendant Allison, and refuses to deliver it to the plaintiff, although same belongs to him, and should be canceled and destroyed. It is further alleged that, although no sale of the property has been made, the defendant Allison threatens and intends, if he obtains possession of said deed, to insert the name of a grantee therein, and that, by reason of the filing of said deed, and the said acts and threats of the defendant Allison, plaintiff's title to said real estate is rendered precarious and clouded.

The defendant county recorder made default. The defendant Allison's answer contains a general denial, and certain allegations touching the relation of the other defendant to the case. In addition thereto, he filed a cross-petition against the plaintiff and his wife, wherein he alleges, in substance: That on the 29th day of April, 1903, the plaintiff and himself entered into a written contract which is as follows: “April 29th, 1903. Know all men by these presents, that for and in consideration of the sum of one dollar and other valuable considerations to Thomas Lucas cash in hand paid, receipt of which is hereby acknowledged, said Thomas Lucas is to give into the hands of C. J. Allison for exclusive handling as to sale for the term of eight months from date the following lands: The south half of the northeast quarter and the north half of the southeast quarter of section seventeen, township twenty-six, range six west of the sixth P. M. This land is hereby from this date placed in the hands of C. J. Allison for sale for the eight months as aforesaid at the price net to Mr. Lucas of $1,600. All the proceeds of the sale of this land over $1,600 is to be C. J. Allison's commission for the sale of this land. In testimony of which, witness our hands the day and year first above written. Thomas Lucas. C. J. Allison. Witness: Clyde McGintie.” That on or about the 25th day of October, 1903, he found a purchaser for said premises at a consideration of $3,200, and the plaintiff conveyed the same to said purchaser. That at the same time, as agent for the plaintiff, he sold certain residence property in Neligh, and a quarter section of land in Holt county, of the aggregate value of $4,700, incumbered to the amount of $1,500; the plaintiff receiving as the consideration for the several properties, including that described in said written contract, a stock of goods, and certain real estate in the village of Wabash, and that the property thus received was of the aggregate value of $6,400. That the reasonable compensation for the sale of the residence property in Neligh and the farm in Holt county, is 5 per cent. on the first $1,000 of the consideration, and 2 1/2 per cent. on the balance, aggregating $142.50, and the commission due this defendant under the written contract above set forth is $1,600, and that the commission for his service amounts in the aggregate to $1,742.50. That at the time the negotiations for the sales mentioned were in progress, and before they were closed, it was agreed between himself and the plaintiff, that the commission of the defendant should be paid in kind from the real estate or merchandise, which formed the consideration for the proposed transfers, and that a portion of such real estate should become his property. That in order not to arouse the suspicions of the purchaser, the title should all be taken in the plaintiff, and the plaintiff should hold his (Allison's) share until the prospective trade was consummated. That after the negotiations were closed and the transfers made, the plaintiff signed and acknowledged the deed described in his petition, but that his wife refused to sign or acknowledge the same, and that by reason of this refusal the property therein described is incumbered by her dower interest whereby this defendant is damaged in the sum of $500. The relief prayed in the cross-petition is that pl...