Peters v. Martin
| Decision Date | 21 February 1919 |
| Docket Number | No. 9740.,9740. |
| Citation | 122 N.E. 16,69 Ind.App. 436 |
| Parties | PETERS v. MARTIN et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Starke County; W. C. Pentecost, Judge.
Action by Robert D. Peters against Michael E. Martin and others. Judgment of dismissal, and plaintiff appeals. Affirmed.
Orville W. Nichols and Oscar B. Smith, both of Knox, for appellant.
Chas. L. Lundins, of Knox, for appellees.
The appellant filed his amended complaint in four paragraphs to recover a commission for procuring a purchaser for a farm owned by the appellee Michael E. Martin in Starke county, Ind., and to set aside as fraudulent a conveyance of said farm by appellee Michael E. Martin and his wife to the appellee Anna Martin. A demurrer for want of facts was sustained to each paragraph of this complaint, to which ruling appellant excepted, and, refusing to plead further, judgment was rendered that he take nothing.
The assignment of error challenges the action of the court in sustaining the demurrer to each paragraph of the amended complaint.
It is alleged in each paragraph of complaint that the parties had been negotiating with each other concerning a sale of said farm, and that on the 5th day of June, 1915, appellant wrote a letter to the appellee Michael E. Martin, of which the following is a copy:
“Dear Sir: Look at number 6715 Winchester avenue, Chicago, and make us an offer, this property while it is old is a good location, rents for $29 per month, and is free and clear, owner wants to trade for a farm and will pay difference in cash, now look at it, and make us your very best offer for cash difference. Mr. Martin, this man knows values of farm lands here, and he will be liberal in a trade, he will act quickly, so make him a good fair offer and state in your letter just what personal property goes with that offer giving a list of all stocks and machinery, also state what commission you will pay men for putting the deal over.
Robert D. Peters.”
On June 7, 1915, Michael E. Martin in reply wrote the following letter to appellant:
To which was added an unsigned postscript reading as follows:
At the same time, and in connection with this letter, there was inclosed a detailed description of the farm and the personal property that went with the farm.
The first paragraph of the amended complaint alleged that appellant referred the appellee, Michael E. Martin, to a real estate broker in Chicago, Ill., by the name of Tobey, who had several properties of one Estelle M. King for sale or trade, and that appellee entered into negotiations with said Tobey and King looking toward an exchange of properties and that on the 15th day of June, 1915, said appellee wrote the following letter to appellant:
“Referring to our correspondence, I think I can make a deal with Mr. Tobey, but the whole thing depends on you in regard to your commission, which I think I will have to pay, so kindly advise me if you will accept $50.00 for your services.
If you accept, O. K., if not, please let me know in which case I will not be able to make the deal, inasmuch as the $18,000.00 tickles me very much. M. E. Martin.”
On the 19th day of June, 1915, appellant, in answer to the said letter of June 15th, wrote a letter to appellee Michael E. Martin of which the following is a copy:
“Replying to yours of the 15th will say, we find in your letter of the 7th, that you value your property at $7,000 being in the real estate business yourself, you certainly know that the commission for farm lands is 5% which in this case would be $350.00. While we might make a small concession to you as you are a dealer yourself, we would not under any circumstances accept $50.00 as a full payment, that would not pay us for our advertising expenses.
We think about $325.00 would be right.
Robert D. Peters.”
August 4, 1915, appellee Michael E. Martin wrote the following letter to appellant:
“I made contract with Dr. King it was right -but they did not live up to our agreement and I don't think I change my mind but will stick to it accordingly.
I have been downtown to-day and just came home about 4 p. m. when I recd. your letter. *** Will let you know result and when I am coming to Knox next week to talk matters over more distinctly. M. E. Martin.”
The complaint further alleges that the appellee Michael E. Martin and Mrs. King did enter into a contract for the exchange of said farm for certain properties of Mrs. King, which was made possible and was brought about through the efforts of appellant, and that his commission was due and payable and wholly unpaid. Then follow the allegations relative to the conveyance of the farm by said appellee and his wife to the appellee Anna Martin, for the alleged purpose of avoiding the payment of the commission, with prayer for a judgment of $350, and that the said conveyance be set aside.
The second paragraph of complaint...
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