Olcott v. McClure
| Decision Date | 03 April 1912 |
| Docket Number | No. 7,539.,7,539. |
| Parties | OLCOTT v. McCLURE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Jennings County; Jas. K. Ewing, Special Judge.
Action by William W. Olcott against Richard K. McClure. Judgment for defendant, and plaintiff appeals. Reversed, with instructions.
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 upon in this appeal. This paragraph, after averring that appellant was a real estate broker engaged in the business of selling real estate with his principal place of business at North Vernon, Ind., and that the appellee resided in the city of Frankfort, state of Kentucky, avers, in substance: That in the spring of 1908, the appellant entered into a written contract, whereby he undertook to find a purchaser for appellee's farm of 1846 acres in the state of Texas. That in case appellee consummated a sale with such purchaser appellant was to receive a commission of one dollar per acre of said Texas farm, to wit, the sum of $1,846. That said written contract was composed of three letters, viz.: First. A letter hearing date October 18, 1907, received by appellant in the spring of 1908 a few days after it had been mailed at the said city of Frankfort, which letter is filed with the complaint as “Exhibit A” and is as follows:
It is further averred that said letter was inclosed in an envelope directed to appellant in the name and style of W. W. Olcott; that with said letter there was inclosed 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 upon the receipt of this letter appellant addressed and mailed to appellee, at Frankfort, a letter acknowledging the receipt of appellee's letter and accepting the employment therein with the statement that he (appellant) “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 appellee should come or send some one to North Vernon when notified. It is averred: That this second letter was signed by appellant in the name and style of W. W. Olcott. That the same is in the possession and control of appellee. That appellant has no copy, and for this reason is unable to file a copy of same, but sets out the substance thereof. That a few days after appellant had mailed his letter he received another from appellee 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 appellee had received appellant's letter and was glad that he would undertake to find a purchaser for said farm; that he (appellee) 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 appellant 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 appellee 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, appellant introduced to appellee one Elmer F. Emery as a prospective purchaser for said Texas real estate, with whom appellee consummated a sale of said real estate, and to whom appellee conveyed said Texas land, receiving therefor 250 acres of land in Jennings county, Ind., and 200 acres of land in Monroe county, Ind., and other property; that appellant assisted in inducing said Emery to purchase said land, appellee making his own terms with said purchaser, and receiving a consideration satisfactory to himself uninfluenced by appellant; that appellant performed his said contract in all things on his part to be performed; that there is due the appellant from the appellee 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 1 and 3, and of mailing letter No. 2, 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 upon the construction to be placed upon 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, is as follows: “Commission for sale of land.-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 upon, and the Supreme Court has said that the same must be strictly construed, 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, 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 et al., 128 Ind. 472, at page 476, 26 N. E. 890, at page 891 (12 L. R. A. 120, 25 Am. St. Rep. 456), the Supreme Court say 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 subjectof the contract, the statute is satisfied.” See, also, Thames et al. v. Beville, 100 Ind. 309-313;Roehl, Adm'r, v. Haumesser, 114 Ind. 311-317, 15 N. E. 345;Wills v. Ross, 77 Ind. 1, 40 Am. Rep. 279.
[1] 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., 123 Ind. 411-413, 24 N. E. 141, 8 L. R. A. 365, 18 Am. St. Rep. 327;Morey v. Terre Haute Traction & Light Co., 93 N. E. 713; Warrington v. Early 2 Ellis & Bl. 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 upon which it was offered, the amount which the appellee agreed to pay to the agent with whose buyer he might consummate a sale, can all 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.” J. A. Everett, Seedsman, v. Bassler, 25 Ind. App. 303-308, 57 N. E. 560. We think the test here furnished a proper one, and that the contents of letter No. 1, supplemented by the averments of the complaint as to the contents of appellant's letter of acceptance and the lost paper and letter, meet every requirement of the...
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