McAfee v. Bending

• Decision Date: 05 December 1905
• Docket Number: 5,395
• Parties: MCAFEE v. BENDING
• Court: Indiana Appellate Court

76 N.E. 412

36 Ind.App. 628

MCAFEE v. BENDING

No. 5,395

Court of Appeals of Indiana

December 5, 1905

From White Circuit Court; Truman F. Palmer, Judge.

Action by J. Frank Bending against John R. McAfee. From a judgment for plaintiff, defendant appeals.

Reversed.

Hanly & Wood and Reynolds, Sills & Reynolds, for appellant.

OPINION

MYERS, J.

Appellee has not favored us with any statement in defense of the record in this cause. But in view of the rule announced in Hanrahan v. Knickerbocker (1905), 35 Ind.App. 138, 72 N.E. 1137, which we again affirm, the questions presented will be considered upon their merits.

This is an action by appellee against appellant to recover a commission for services rendered appellant in procuring a purchaser for certain real estate. From a judgment rendered in the White Circuit Court, in favor of appellee, appellant appeals to this court, and assigns various grounds for a reversal.

This action rests upon a written contract as follows: "I John R. McAfee, of the county of Tippecanoe, in the State of Indiana, have this day contracted with and employed Frank Bending, of the same county and State aforesaid, as my agent, for me and in my name, to sell a certain tract of land situated in the state of Mississippi, in Yazoo county, supposed to contain about 3,720 acres. Said Bending is authorized by me to sell said property for the sum of $ 12,150 cash. And he is to have for his services, as commission for the selling of said land, all sums over said sum of $ 12,150. And when he finds a purchaser for said land that will pay me said sum of money I agree to make a good and clear title to said land, or whenever said Bending tenders to me, or deposits for me, said sum of $ 12,150 in the Merchants National Bank at the city of LaFayette, then I agree to make a good and sufficient warranty deed to said Bending, or whoever he may direct. Dated this 26th day of September, 1902. John R. McAfee."

To appellee's complaint, appellant filed an answer consisting of the general denial and two affirmative paragraphs. A demurrer was sustained to the third paragraph, which appellant insists should have been carried back and sustained to the complaint.

In the court below the complaint was not tested by a demurrer, except by a ruling of the court in sustaining a demurrer to the third paragraph of answer. It is a rule of pleading that a demurrer, for want of facts, to an answer, will search the record and test the sufficiency of the complaint to state a cause of action. Gould v. Steyer (1881), 75 Ind. 50. And the exception saved to the court's ruling on such demurrer presents the question (Haymond v. Saucer [1882], 84 Ind. 3; Alkire v. Alkire [1893], 134 Ind. 350, 32 N.E. 571) when urged in an appellate court upon a proper assignment of error. There is no assignment in the record based upon the action of the court in not carrying the demurrer back to the complaint, and therefore appellant's contention in this particular will not be considered. Lux, etc., Stone Co. v. Donaldson (1904), 162 Ind. 481, 68 N.E. 1014; Hunter v. Fitzmaurice (1885), 102 Ind. 449, 2 N.E. 127; Peters v. Banta (1889), 120 Ind. 416, 424, 22 N.E. 95; Baldwin v. Sutton (1897), 148 Ind. 591, 47 N.E. 629.

Appellant insists that the complaint does not state facts sufficient to constitute a cause of action. It is not contended that the complaint does not show a full performance of all the conditions in the contract by appellee to be performed, but its insufficiency is pressed upon the ground that it does not aver a breach. The complaint contains the following allegations: "That said Bean presented said check to defendant on said day, and requested the conveyance of said real estate to him, as the purchaser thereof; that a scrivener was present to draw the deed and to take the acknowledgment of the grantors thereto; that defendant delayed the execution of said deed on said day, and afterwards refused to make said conveyance, though many times requested by plaintiff so to do; that the plaintiff and said Bean made other and subsequent trips to the home of said defendant for the purpose of procuring the conveyance of said real estate to said Bean, all of which defendant refused to do; that said Bean has stood ready at all times and willing to pay the cash for said real estate in the amount herein above named, and is now ready and willing so to do; that by the failure of the defendant to keep, perform and honestly and faithfully carry out his said contract and agreement, and in his failure to execute to said Bean a deed of conveyance for the real estate referred to and designated in said contract, and by his refusal so to do, plaintiff was deprived of his commission as such servant and agent, as by the terms of said contract provided, in the sum of $ 2,850, and to his damage in the sum of $ 2,850." If the contract in suit is one for the payment of money only, and its breach gives the right to maintain the action, then the complaint should aver the nonpayment of the money demanded, or facts from which its nonpayment can be fairly inferred. Wheeler & Wilson Mfg. Co. v. Worrall (1881), 80 Ind. 297; Brickey v. Irwin (1890), 122 Ind. 51, 23 N.E. 694; Stanton v. Kenrick (1893), 135 Ind. 382, 390, 35 N.E. 19; Baldwin v. Boyce (1898), 152 Ind. 46, 51 N.E. 334.

But, where the contract stipulates for the doing of something more than the mere payment of money, the averment of failure and refusal to do that which the contract stipulates to be done, and that the plaintiff has thereby sustained damages, is sufficient, without the averment that the damages are due and unpaid. Catterlin v. Armstrong (1885), 101 Ind. 258; Harman v. Moore (1889), 112 Ind. 221, 13 N.E. 718; Vice v. Brown (1899), 22 Ind.App. 345, 53 N.E. 776; Riley v. Walker (1893), 6 Ind.App. 622, 34 N.E. 100. The complaint in the case at bar is controlled by the latter class of cases, and after verdict is sufficient to withstand the criticism urged against it. Bedford Belt R. Co. v. Brown (1895), 142 Ind. 659, 42 N.E. 359; Efroymson v. Smith (1902), 29 Ind.App. 451, 63 N.E. 328; Cleveland, etc., R. Co. v. Baker (1900), 24 Ind.App. 152, 54 N.E. 814.

Appellant insists that "the court erred in sustaining the demurrer of the appellee to the third paragraph of the answer." This answer in substance avers that Joseph Bean, an uncle of appellee, after the execution of the contract in suit, was by appellee presented to appellant as a proposed purchaser of the real estate mentioned in the contract at the price of $ 15,000; that appellee and his uncle "entered into a collusion" whereby the uncle was to pretend to appellant that he was ready and willing to purchase the land and pay for the same in cash; that appellant, under the belief that the proposed purchaser was acting in good faith, fixed a day and place (his home) when and where the deed was to be made that at the place and upon the day so fixed all the parties in interest were present, as also a scrivener employed by appellant to prepare the deed; that appellant was then and there prepared to furnish a perfect and complete description of all of said lands; that appellee and his uncle, on learning that appellant was ready and willing to carry out his part of the contract, for the purpose of causing delay, amongst other things, questioned the correctness of the description proposed to be inserted in the deed, and asked that execution of the deed be postponed until other papers containing a more perfect description could be found; that it was finally agreed that the execution of the deed be delayed until the...