Wachtel v. Harkless
| Decision Date | 10 November 1942 |
| Docket Number | 16987. |
| Citation | 44 N.E.2d 510,112 Ind.App. 279 |
| Parties | WACHTEL et al. v. HARKLESS. |
| Court | Indiana Appellate Court |
Harry M. Stitle and Edw. H. Knight, both of Indianapolis, for appellants.
Geo W. Eggleston and Scott Ging, both of Indianapolis, for appellee.
In this action the appellee, Arnold A. Harkless, recovered a judgment against appellants, Henry Wachtel, Carl Hart and Earl Hart for a broker's commission claimed to be due the appellee for the sale of personal property owned by the appellant Henry Wachtel, and used in operating a tavern. There was a trial by the court which made a special finding of the facts and stated conclusions of law thereon.
The only question presented here for determination is the sufficiency of the evidence to sustain the trial court's finding that the appellee caused a purchaser to be introduced to the appellant, Henry Wachtel.
On August 20, 1940, the appellee and the appellant, Henry Wachtel, entered into a written agreement whereby such appellant promised to pay to the appellee a specified commission for securing a purchaser or introducing, or causing to be introduced, a purchaser for the particular tavern. This written agreement, after describing the tavern and the sale price, proceeded as follows:
(Signed)
The appellee Harkless had been engaged in business in the city of Indianapolis for a number of years. He sold restaurants, taverns, and grocery stores, employed salesmen, advertised his business, and sent salesmen to contact persons who might wish to sell or buy such property. After Wachtel had listed his tavern for sale the appellee advertised the same and took a number of prospective purchasers to examine the same.
In September, 1940, Frank Greenwood, a salesman of appellee, took the appellant, Carl Hart, as a prospective purchaser, to the tavern. The owner Wachtel was not there, but the salesman of appellee introduced Carl Hart to the bartender and Carl Hart examined the tavern and informed the salesman that he and his brother had been looking for a place like this. At that time Carl Hart owned two taverns in Indianapolis and he was interested in buying a third. His brother, Earl Hart, had an interest in one of these places, and Carl Hart testified that when he examined the tavern of Wachtel he was looking for a place for his brother to buy. Thereafter, the appellant, Earl Hart, learned from Carl Hart that this particular tavern was for sale. Carl Hart and Earl Hart then contacted the appellant, Henry Wachtel, and without the knowledge of appellee negotiations were concluded and the tavern was sold to Earl Hart. Carl Hart advanced part of the purchase price and certain advertisements were placed in a paper indicating that the place was owned by both Carl Hart and Earl Hart; but the bill of sale was made to Earl Hart and the trial court in its special finding found that the tavern was sold to Earl Hart.
The trial court stated conclusions of law that the appellee was entitled to recover from all of the appellants the commission and attorney fee that were provided for in the foregoing agreement, and judgment was rendered against all of the appellants therefor. But the appellee, in his brief, confesses that this judgment is erroneous in as far as it affects the appellants, Carl Hart and Earl Hart, and that no facts are found in the special finding that would justify conclusions of law and a judgment against them. So we will consider only whether the judgment must be affirmed or reversed as to the appellant, Henry Wachtel.
Under the ordinary brokerage contract, the broker must be the efficient or procuring cause of the sale he is employed to negotiate; but in each instance the broker's rights must be determined from the terms of the contract of employment. The appellant Wachtel agreed to pay the specified commission to the appellee if Wachtel sold, or any one else sold, the listed property to a purchaser that had been "introduced", or "caused to be introduced", by the appellee. We think the word "introduced", as used in such agreement, was equivalent to and used in the sense of "found" or "procured." It was not the intention of the parties that appellee's rights to a commission be dependent upon whether the customer was personally taken into the presence of and made known to the seller, but rather upon whether the broker "found" or "procured" a customer, or caused to be "found" or "procured" a customer, who purchased the property in question from the seller.
In the case of Platt v. Johr, 1893, 9 Ind.App. 58, 36 N.E 294, 295, this court considers a broker's contract where the owner of a livery stable agreed to pay the broker the sum of...
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