Sallack v. Freeman
| Decision Date | 06 June 1921 |
| Docket Number | No. 21653.,21653. |
| Citation | 183 N.W. 297,106 Neb. 299 |
| Parties | SALLACK v. FREEMAN ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A parol contract for payment of commissions for procuring an exchange of lands is not governed by the provisions of section 2628, Rev. St. 1913.
Appeal from District Court, Douglas County; Estelle, Judge.
Action by J. E. Sallack against Jesse Freeman and another. Judgment for plaintiff, and defendants appeal. Affirmed.Arthur C. Pancoast, of Omaha, and Williams & Kryger, of Neligh, for appellants.
Gaines & Van Orsdel, of Omaha, for appellee.
Heard before LETTON, DAY, and DEAN, JJ., and SHEPHERD and STEWART, District Judges.
Action, upon agreed facts, to recover broker's commissions for exchange of real estate. Plaintiff recovered, and defendant appeals.
Both parties concede in their briefs that the only question involved is the right of a broker to recover commissions for the exchange of real estate, without having had a contract as provided by section 2628, Rev. St. 1913, which reads as follows:
“Every contract for the sale of lands, between the owner thereof and any broker or agent employed to sell the same, shall be void unless the contract is in writing and subscribed by the owner of the land and the broker or agent, and such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent.”
The testimony shows appellees' employment under the following contract:
“The Merchants' Hotel, Dan W. Gaines, Proprietor, 15th and Farnam Sts.,
This is to certify that I hereby agree to pay a commission of $500 to my agent, J. E. Sallack, in the exchange of the So. 1/2 Sec. 3 and the N. E. 1/4 Sec. 10, Twp. 30, Range 10, W. 6 P. M., Holt county, Nebr., upon any terms that are acceptable to me for the apartment house located in the city of Omaha, Nebr., and known as the Peoria.
Miner B. Freeman.”
The testimony further shows that through the efforts of appellee, on March 13, 1918, a written agreement was entered into between Dan B. Gaines and Jesse L. Freeman for the exchange of the properties mentioned in the employment contract, and soon thereafter transfers were made accordingly.
Appellant contends that the employment contract is void because not signed by the appellee. The contract in question was for an exchange, and not a sale of real estate. We must determine the meaning of this statute, in the absence of ambiguity, from its terms, and from what the Legislature plainly said. 25 R. C. L. 957, 958, §§ 213, 214.
In Lucas v. County Recorder of Cass County, 75 Neb. 351, 106 N. W. 217, this court defined the distinction between a sale and an exchange of property, as follows:
“A sale is a transmutation of property or a right from one person to another, in consideration of a sum of money, as opposed to barters, exchanges and gifts.”
The case also affirms a judgment obtained by a broker, acting under an oral agreement for an exchange of land, effected by his efforts.
In Nelson v. Nelson, 95 Neb. 523, 145 N. W. 1004, this court gave the statute a strict...
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