Viley v. Pettit

• Decision Date: 08 February 1895
• Citation: 29 S.W. 438,96 Ky. 576
• Parties: VILEY v. PETTIT.
• Court: Kentucky Court of Appeals

29 S.W. 438

96 Ky. 576

VILEY v. PETTIT.

Court of Appeals of Kentucky.

February 8, 1895

Appeal from circuit court, Fayette county.

"To be officially reported."

Action by Willa Viley against William Pettit to recover a commission on a sale of real estate. From a judgment upon demurrer for defendant, plaintiff appeals. Reversed.

Thornton & Kerr, for appellant.

J. R Morton and F. C. Elkin, for appellee.

LEWIS J.

The petition, to which a general demurrer was sustained by the lower court, is as follows: "Plaintiff, Willa Viley says that prior to and on February 9, 1893, he was engaged in the city of Lexington in conducting a general real-estate business, including the buying and selling for others of real estate in that city and county of Fayette and elsewhere, upon commission, which facts were then known to the defendant William Pettit; that while engaged in said business he performed services for the defendant with his consent, in endeavoring to effect a sale for him of his farm situated in the county of Fayette, containing 347 acres 1 rood and 14/10 poles of land, being the same upon which defendant lately resided; that through his said services and efforts a sale of the said farm was made, and the defendant, accepting plaintiff's said services consummated said sale, and on February 9, 1893, through the said services and efforts of plaintiff, said farm was sold for the sum $43,407.34. Plaintiff says that his said services were reasonably worth the sum of $868.14, and, by reason of the facts aforesaid, the defendant, on February 9, 1893, became indebted to plaintiff in said sum, which he then undertook and promised to pay, but no part thereof has been paid, although payment has been demanded." It seems to be substantially stated in the petition that through services of plaintiff as a real-estate agent a sale of the farm was made; that defendant accepted and availed himself of the services, and, in consideration thereof, promised to pay the amount sued for. And upon proving each of these facts plaintiff will be entitled to recover; for if sale of the farm was effected by services and efforts of plaintiff, and defendant, accepting the services, consummated the trade, there existed a sufficient consideration to support his promise to pay. But we do not agree with counsel that from the facts stated there arises a legal implication that defendant requested plaintiff to perform the services in...