Olcott v. McClure
| Decision Date | 03 April 1912 |
| Docket Number | 7,539 |
| Citation | 98 N.E. 82,50 Ind.App. 79 |
| Parties | OLCOTT v. McCLURE |
| Court | Indiana Appellate Court |
From Jennings Circuit Court; James K. Ewing, Special Judge.
Action by William W. Olcott against Richard K. McClure. From a judgment for defendant, the plaintiff appeals.
Reversed.
Harry C. Meloy, and Korbly & New, for appellant.
William Fitzgerald, for appellee.
Appellant brought this suit to recover a commission of $ 1,846, alleged to be due him from appellee on a written contract for the sale of appellee's land.
A demurrer was sustained to an amended second paragraph of complaint, to which ruling a proper exception was saved. Appellant refused to plead further, and judgment was rendered against him on said paragraph. Said ruling presents the only error relied on in the appeal. This paragraph, after averring that plaintiff was a real estate broker engaged in the business of selling real estate, with his principal place of business at North Vernon, Indiana, and that the defendant resided in the city of Frankfort, Kentucky, avers, in substance, that in the spring of 1908, plaintiff entered into a written contract, whereby he undertook to find a purchaser for defendant's farm of 1,846 acres in the State of Texas; that in case defendant consummated a sale with such purchaser, plaintiff was to receive "a commission of one dollar per acre of said Texas farm, to wit: the sum of eighteen hundred and forty-six dollars;" that said written contract was composed of three letters, viz.: (1) A letter bearing date of October 18, 1907, received by plaintiff in the spring of 1908, a few days after it had been mailed at the city of Frankfort, which letter is filed with the complaint as exhibit A, and is as follows:
Frankfort Ky. Oct. 19, 1907.
Dear Sir:--
Enclosed you will find description of a Texas farm, offered for sale at a very attractive price. To the agent with whose buyer I consummate a sale, at the price and terms mentioned, I will pay a commission of $ 1.00 an acre so soon as the terms of the sale are complied with, but I am in no event to be held liable for more than one commission.
For further information address either the undersigned at Frankfort, Ky., or W. H. McClure, Weatherford, Texas. In case you get any prospective customers to go to look at this land, W. H. McClure is at Weatherford prepared to show it.
It is further averred that said letter was enclosed in an envelope directed to plaintiff in the name and style of W. W. Olcott; that with said letter there was enclosed a typewritten description of said Texas farm, with the statement that it was offered at $ 16 per acre, and that time would be given on said deferred payments as buyer and seller might agree; that immediately on the receipt of this letter, plaintiff addressed and mailed to defendant, at Frankfort, a letter acknowledging the receipt of said letter, and accepting the employment therein, with the statement that he (plaintiff) "would undertake to find a purchaser for said Texas real estate according to the terms of said letter," and that he would write in regard to prospective purchasers, and that defendant should come or send some one to North Vernon when notified. It is averred that this second letter was signed by plaintiff in the name and style of W. W. Olcott; that the same is in the possession and control of defendant, and that plaintiff has no copy, and for this reason is unable to file a copy of the same, but sets out the substance thereof; that a few days after plaintiff had mailed his letter, he received another from defendant, addressed to him in the name of W. W. Olcott, and the paragraph then sets out what is averred to be the substance of this letter which is, in effect, that defendant had received plaintiff's letter, and was glad that he would undertake to find a purchaser for said farm; that he (defendant) had not misrepresented matters in his first letter; that he would consider good trades and keep good his word as expressed in his first letter, "if he made a sale with a purchaser found by appellant." It is then averred that plaintiff undertook said employment, advertised said farm, and began negotiations to find a purchaser therefor; that he induced parties to visit said land, and under said contract conducted negotiations between defendant and prospective purchasers; that in the fall of 1908, while performing his duties as such real estate broker, and while acting under said contract of employment, plaintiff introduced to defendant one Elmer F. Emery, as a prospective purchaser for said Texas real estate, with whom defendant consummated a sale of said real estate, and to whom he conveyed said Texas land, receiving therefor 250 acres of land in Jennings county, Indiana, and 200 acres of land in Monroe county, Indiana, and other property; that plaintiff assisted in inducing said Emery to purchase said land, defendant making his own terms with said purchaser, and receiving a consideration satisfactory to himself, uninfluenced by plaintiff; that plaintiff performed his said contract in all things on his part to be performed; that there is due from defendant to plaintiff, for his services under said contract, $ 1,846, all of which is due and wholly unpaid.
Appellant's inability to state the exact date of entering into said written contract, his inability to state the exact date of receiving either of said letters one and three, and of mailing letter number two, the loss of the envelope in which the first letter and paper containing description of real estate were sent to him, the loss of the said paper containing said description, the loss of the third letter, the fact that appellant had no copy of any of said lost papers, and his inability for said reason to file copies of either of said lost papers, are each and all specifically and certainly averred, so that no question is raised or presented on account of the absence of any of these technical averments necessary to account for the absence of copies of the alleged lost letters and paper, and the question in the case turns solely on the construction to be placed on, and the effect to be given to, the letter exhibit, and the averments as to the contents of the lost letters and paper.
Section 7463 Burns 1908, Acts 1901 p. 104, is as follows: "That no contracts for the payment of any sum of money, or thing of value, as and for a commission or reward for the finding or procuring, by one person, of a purchaser for the real estate of another shall be valid, unless the same shall be in writing, signed by the owner of such real estate or his legally appointed and duly qualified representative."
Said section governs the contract sued on, and the Supreme Court has said that the same must be strictly construed, in that there must be no doubt as to the existence of such written contract and no dispute as to its contents or provisions. Provident Trust Co. v. Darrough (1907), 168 Ind. 29, 36, 78 N.E. 1030.
It is expressly averred that the contract was in writing, and in this regard the requirement of the statute is met, so that the questions here presented are, in their last analysis: (1) Is there enough in the letter exhibit, supplemented by the alleged contents of the lost paper accompanying the same, together with the alleged contents of the two lost letters, to show a certain and definite understanding and agreement between appellant and appellee? (2) If such agreement is, in fact, shown by such exhibit, lost letters and paper, do the averments of the complaint show such a performance of said agreement according to its terms and provisions as entitles appellant to the benefits of the same?
In the case of Austin v. Davis (1891), 128 Ind. 472, 476, 26 N.E. 890, 12 L.R.A. 120, 25 Am. St. 456, the Supreme Court said with reference to contracts of the character here involved: "If a contract which comes within the statute of frauds can be extracted from correspondence between the parties upon the subject of the contract, the statute is satisfied." See, also, Thames Loan, etc., Co. v. Beville (1885), 100 Ind. 309, 313; Roehl v. Haumesser (1888), 114 Ind. 311, 317, 15 N.E. 345; Wills v. Ross (1881), 77 Ind. 1, 40 Am. Rep. 279.
If a writing contains matter sufficient to enable the court to ascertain the subject-matter and the terms and conditions of the obligation or contract to which the parties intended to bind themselves, it is sufficient. The effect of such written contract is to be collected from "all within the four corners" of the several letters or writings which go to make up the same, and if it can be so collected such writings will be held sufficient to constitute a contract. Witty v. Michigan, etc., Ins. Co. (1890), 123 Ind. 411, 413, 24 N.E. 141, 8 L.R.A. 365, 18 Am. St. 327; Warrington v. Early (1853), 2 El. & Bl. (75 Eng. Com. Law) 763.
Under the averments of this paragraph of complaint, the subject-matter of the contract, namely, the farm offered for sale, its description, the terms on which it was offered, the amount which appellee agreed to pay to the agent with whose buyer he might consummate a sale, can be definitely and certainly ascertained.
Appellee in his brief says: "The primary question is whether the correspondence shows an agreement, upon which the minds of the parties met, as to description, terms, price, and commission, or whether the negotiations are inchoate and unperfected until something should intervene and be determined in order to give it full effect." See Everitt v. Bassler (1900), 25 Ind.App. 303, 308, 57 N.E. 560.
We think the test here furnished a proper one, and that the contents of letter number one, supplemented by the averments...
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