Selvage v. Talbott

• Decision Date: 23 May 1911
• Docket Number: No. 21,773.,21,773.
• Citation: 175 Ind. 648,95 N.E. 114
• Parties: SELVAGE v. TALBOTT.
• Court: Indiana Supreme Court

175 Ind. 648

95 N.E. 114

SELVAGE

v.TALBOTT.

No. 21,773.

Supreme Court of Indiana.

May 23, 1911.

Appeal from Superior Court, Marion County; Pliny W. Bartholemew, Judge.

Action by Joseph W. Selvage against Henry M. Talbott. Judgment for defendant, and plaintiff appeals. Affirmed.Robert W. McBride, for appellant. Chas. W. Smith, John S. Duncan, Henry H. Hornbrook, and Albert P. Smith, for appellee.

MORRIS, J.

Appellant sued appellee for services, on an oral contract, in negotiating a sale of real estate. The complaint is in three paragraphs, the first of which declares on an agreement for a commission of 2 1/2 per cent. on the amount of the sale price, the second on an agreement for a reasonable compensation, and the third is based solely on the quantum meruit. The latter paragraph alleges the rendition of services by plaintiff to defendant at his special instance and request in finding for him a purchaser of certain real estate, the reasonable value of the services, and that the claim is due and unpaid. To each paragraph of complaint the lower court sustained a demurrer for insufficient facts. This action of the court is here assigned as error.

It is conceded by appellant that the lower court did not err in sustaining the demurrer to the first and second paragraphs of complaint if section 1 of the act of March 5, 1901, relating to contracts for services in selling real estate, is a valid enactment, but appellant claims that this section is unconstitutional and void because it conflicts with sections 21 and 23 of article 1 of the Constitution of Indiana, and also with the fourteenth amendment to the Constitution of the United States. Appellant further insists that, even though the act in controversy is constitutional, it applies only to express contracts, and therefore the third paragraph of complaint, which is on an implied obligation, is sufficient to repel a demurrer.

Appellee contends that the statute in controversy is valid, and that the contract sued on is invalid because not in writing. The section of the statute in question reads as follows: “That no contract 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, or 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.” Acts 1901, p. 104; Burns' Stat. 1908, § 7463. Section 21, art. 1, of our Constitution, is as follows: “No man's particular services shall be demanded without just compensation. No man's property shall be taken by law without just compensation; nor, except in the case of the state, without such compensation first assessed and tendered.” Section 23 of the same instrument reads as follows: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”

[1] At the outset, it may be conceded that this statute is in derogation of the common law, and therefore must be strictly construed. Thornburg v. American Strawboard Co. (1895) 141 Ind. 443, 40 N. E. 1062, 50 Am. St. Rep. 334.

[2] It may be further conceded, as appellant contends, that, when the General Assembly makes a classification of the subjects of legislation, it must have some reasonable basis on which to stand, and must operate equally upon all within the class; that the reason for the classification must inhere in the subject-matter, and must be natural and substantial. A proper classification treats all brought under its influence alike under the same conditions, and must embrace all within the class to which it is naturally related. Bedford Quarries Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418, and cases cited.

[3] But it cannot be questioned that the state under its police power has the right to regulate any and all kinds of business to protect the public health, morals, and welfare, subject to the restrictions of reasonable classification. Walker v. Jameson (1894) 140 Ind. 591, 37 N. E. 402, 39 N. E. 869, 28 L. R. A. 679, 49 Am. St. Rep. 222;Adams Express Co. v. State (1903) 161 Ind. 706, 67 N. E. 1092;Seeleyville, etc., Co. v. McGlosson (1906) 166 Ind. 561, 77 N. E. 1044, 117 Am. St. Rep. 396;Knight & Jillson Co. v. Miller (1909) 172 Ind. 27, 87 N. E. 823. Several states have laws similar to the one in controversy. In Baker v. Gillan, 68 Neb. 368, 94 N. W. 615, the Supreme Court of Nebraska, in deciding a case involving the matter in issue here, used the following language: “The only question suggested by the petition in error and discussed in the briefs is whether an oral agreement like the one on which plaintiff relies is valid and enforceable. The first section of the act of 1897 [Laws 1897, c. 57] is 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.’ It is conceded that the case falls within the provisions of this section, and that, if the law is constitutional, the judgment is right. We think the law is constitutional, and that the argument in support of the claim that it is special legislation is obviously unsound. It is, of course, competent for the Legislature to classify objects of legislation, and if the classification is reasonable, and not artificial or arbitrary, it will be upheld as a legitimate exercise of legislative power. The statute here considered is only a new instance of the exercise of that power. It may be that it is without exact precedent, but it has many familiar analogies in the legislation of this and other states. It is more special legislation than are those provisions of the statute of frauds which require certain contracts to be evidenced by writing. It is in fact a virtual extension or enlargement of the statute of frauds, and, like that statute, was designed to...