Mohr v. Rickgauer

• Decision Date: 08 October 1908
• Docket Number: 15,293
• Citation: 117 N.W. 950,82 Neb. 398
• Parties: WILLIAM P. MOHR, APPELLANT, v. HENRY RICKGAUER, APPELLEE
• Court: Nebraska Supreme Court

117 N.W. 950

82 Neb. 398

WILLIAM P. MOHR, APPELLANT, v. HENRY RICKGAUER, APPELLEE

No. 15,293

Supreme Court of Nebraska

October 8, 1908

APPEAL from the district court for Boyd county: JAMES J. HARRINGTON JUDGE. Reversed.

REVERSED.

N. D Burch and E. J. Clements, for appellant.

W. T Wills, contra.

CALKINS, C. FAWCETT and ROOT, CC., concur.

OPINION

CALKINS, C.

This was an action upon a promissory note. The evidence tended to show that the defendant employed the plaintiff as broker to sell 480 acres of land, and orally agreed to pay him as commission for such services the sum of $ 1 an acre; that, after plaintiff performed such contract on his part, a dispute arose as to the amount which the plaintiff was entitled to receive, and to settle such controversy the defendant executed the note in question for the sum of $ 200. The court below took the view that an oral contract to pay plaintiff a commission being unenforceable because of the provisions of the act of 1897 (laws 1897, ch. 57; Comp. St. 1897; ch. 73, sec. 74), such services did not constitute a sufficient consideration to support the note, and directed a verdict for the defendant. From a judgment entered upon this verdict, the plaintiff appeals.

The statute in question has been sustained, and it has been frequently held that, where the employment is oral, there can be no recovery upon the contract (Allen v. Hall, 64 Neb. 256, 89 N.W. 803; Baker v. Gillan, 68 Neb. 368, 94 N.W. 615; Covey v. Henry, 71 Neb. 118, 98 N.W. 434; Danielson v. Goebel, 71 Neb. 300, 98 N.W. 819); nor upon a quantum meruit for services performed (Blair v. Austin, 71 Neb. 401, 98 N.W. 1040; Rodenbrock v. Gress, 74 Neb. 409, 104 N.W. 758; Barney v. Lasbury, 76 Neb. 701, 107 N.W. 989). Now, we have presented the question whether such services constitute a sufficient consideration for a written promise to pay. Like the statute of frauds, of which it is a virtual extension and enlargement, it was designed to exclude oral testimony as a means by which the rights of litigants could be determined in certain cases where experience has shown that it was particularly liable to abuse. Baker v. Gillan, supra. To make a concrete application of the reason for the law, the legislature, premising that a liability might be wrongfully imposed upon a defendant by false testimony if it were permitted to be established by oral evidence, has provided that he shall not be charged except upon a written contract subscribed by himself. When, however, the defendant, after receiving the benefit of services, executes a written promissory note in payment thereof, it would seem that the reason of the law was fulfilled. The contract is then established by his own signature.

The object of the statute is, as we have seen, to prevent frauds and perjuries; and, while certain contracts are by the terms thereof declared void, the uniform construction placed upon the statute by the courts renders it not void, but merely unenforceable. Riley v. Bancroft's Estate, 51 Neb. 864, 71 N.W. 745. It is within the principle laid down by Baron Parke in Earle v. Oliver, 2 Exch. (Eng.) 71, that, "where the consideration was...