Vogel v. Ensor

• Decision Date: 09 June 1921
• Docket Number: 10,864
• Citation: 131 N.E. 416,76 Ind.App. 91
• Parties: VOGEL ET AL. v. ENSOR
• Court: Indiana Appellate Court

131 N.E. 416

76 Ind.App. 91

VOGEL ET AL. v. ENSOR

No. 10,864

Court of Appeals of Indiana

June 9, 1921

From Warrick Circuit Court; Marshall R. Tweedy, Judge.

Action by Charles B. Vogel and others against James H. Ensor. From a judgment for defendant, the plaintiffs appeal.

Affirmed.

Caleb J. Lindsay, for appellants.

Roscoe Kiper, Henry F. Fulling and Arch Stevenson, for appellee.

OPINION

ENLOE, C. J.

The complaint in this case was in two paragraphs, to each of which a demurrer interposed by appellee for want of facts was sustained, and the appellants, refusing to plead further suffered a judgment to be rendered against them for costs from which this appeal is prosecuted. The errors assigned challenge the action of the court in sustaining said demurrers.

The first paragraph of the complaint was based upon a certain instrument in writing, which purported to be a real estate broker's contract. That part of said instrument material to the decision of this case read as follows: "Provided that said J. H. Ensor sell this property to party or parties whose attention was directed to said land by said Mitchell then said Mitchell entitled to and shall receive his commission of -- per cent. on the sale price thereof. " By the second paragraph of his complaint the plaintiff sought to have said clause of said contract reformed by striking therefrom the word "Mitchell" where the same occurred in said contract and particularly in the aforementioned clause thereof, and inserting in lieu thereof, the names of the plaintiffs herein Charles B. Vogel and William H. Axton, and also to have said clause before quoted, reformed by inserting the word "three" in the blank before the word "per cent." so that the latter part of said clause would read as follows: "Then said Vogel and Axton entitled to and shall receive their commission of three per cent. on the sale price thereof."

In the said second paragraph of complaint it is alleged: "That it was mutually agreed between plaintiffs and defendant that in case plaintiffs secured a buyer for said real estate that the defendant would pay plaintiffs a commission of three per cent. of purchase price; that by inadvertence and mutual mistake of the plaintiffs and the defendant at the time of drawing said contract, the amount of commission agreed upon between plaintiffs and defendant was omitted from said contract; that said omission was due to a mutual mistake of the plaintiffs and the defendant in drawing said contract; that it was intended by plaintiffs and the defendant to insert said three per cent. in said contract; but the scrivener who drew said contract by inadvertence and mistake left said amount out of said contract." Plaintiffs ask that said contract be reformed and that they be given judgment thereon as reformed, against the appellee in the sum of $ 660.

The first paragraph of the complaint was clearly insufficient. The contract was incomplete, the amount of the commission to be paid not being stated therein. This was a vital part of the contract which the statute required to be in writing. As said in the case of Zimmerman v. Zehendner (1905), 164 Ind. 466, 73 N.E. 920, 3 Ann. Cas. 655: "The material part of the agreement--the amount of compensation--is still left in uncertainty and undetermined. The compensation is to be the amount 'understood;' but by whom is not stated. In short, the contract, in so far as it relates to this action, is only partially in writing. The important feature--the amount of commission to be paid--is to be ascertained by parol testimony in regard to an understanding which may prove to be a misunderstanding, the exact thing which the statute was designed to prevent."

A material part of the contract in suit being verbal, it was an oral contract, and therefore invalid under our statute, § 7463 Burns 1914, Acts 1913 p. 638. The court did not err in sustaining the demurrer to said first paragraph of complaint.

The action of the court in sustaining a demurrer to the second paragraph of complaint presents a question of more difficulty. As the contract stood at the time suit was brought, it was entirely without any legal vitality.

Is it within the power of a court of equity under the guise of reforming a contract, to vitalize and thereby give legal life and force to that which, as made by the parties, was without such life and force? It has been repeatedly held that the statute in question was enacted for the purpose of preventing frauds and perjuries by requiring the entire contract to be in writing. In a court of law, it is immaterial that the minds of the parties did actually meet in each and all of the several necessary elements to be embodied in their contract; if they have not evidenced such meeting of their minds by placing their agreement in writing, a court of law will not hear parol testimony on the matter. As said in the Zimmerman case, supra: "The understanding as to the commission to be paid may prove to be a misunderstanding." For a court of equity to assume jurisdiction of this matter and permit a contract, such as the one in question, to be reformed under the circumstances revealed by the complaint in this case, such court of equity would be compelled to hear the testimony of the parties; the plaintiffs and their witnesses would be permitted to go upon the witness-stand and testify concerning their understanding of the agreement; the defendant would likewise be permitted to go upon the witness-stand and deny, possibly in toto, everything as testified to by the plaintiffs and their witnesses; all of this testimony being parol, the court, sitting as a court of equity, has opened the gates and thus removed the bar, and made it possible for perjury to be committed; to sustain the contention of the appellants would be, in effect, to say that the legislature intended to prevent fraud and perjury in courts of law but had no such intention as to courts of equity. We do not think that the law should be so construed as to produce what seems to us such an unseemly result.

In a note, 34 Cyc 927, it was said "Through mistake or accident an instrument within the statute of frauds may include subject-matter as lands, which should have been omitted, or it may omit subject-matter which should have been included. No other ground for reformation exists within the statute. As to the first case the...