Ward v. Potts
| Decision Date | 18 April 1950 |
| Docket Number | No. 28661,28661 |
| Citation | 91 N.E.2d 643,228 Ind. 228 |
| Parties | WARD v. POTTS. |
| Court | Indiana Supreme Court |
Raymond O. Evans, Crawfordsville, Scifres & Hollingsworth, Lebanon, for appellant.
Parr, Parr & Parr, Lebanon, for appellee.
By an amended complaint in three paragraphs appellant seeks to recover from appellee a commission of 3% for selling a portion of appellee's farm lands. The alleged contract consisted of appellee's written offer as follows:
'Lebanon, Ind.
Jan. 10, 1946
Ward's Agency
Crawfordsville, Ind.
Dear Mr. Ward:
I have your letter of December 19th, re selling my farm in Madison Township. This farm will be offered on the basis listed below.
The property is in three tracts: 212 acres, full set of buildings, plus small tenant house; 160 acres full set of buildings: 100 acres, no buildings. Electricity at both farms.
The prices on various combinations are as follows:
[228 Ind. 231]212 acres for $40,280
160 acres for 32,800
100 acres for 17,000
312 acres for 56,160
260 acres for 49,400
472 acres for 85,000
This may be sold in any one of the following combinations, except, that in no case will the 212 and 160 be sold leaving the 100 acres alone. The 100 acres may be sold first alone, in which case the others could be sold the same way.
Commission at three per cent will be paid.
This is not exclusive.
Very truly yours,
C. R. Potts
303 South East Street
Lebanon, Ind.
P. S. This sale is subject to tenants rights for 1946.'
There is no averment that this offer was accepted in writing.
Paragraph I of the amended complaint avers appellant's employment by the above written offer. That on October 22, 1946, appellant found a purchaser, Julian Whitaker, for the 160 acre tract mentioned in the written offer for $31,000. That appellee on that date sold the 160 acre tract to the person so procured by appellant, for the sum of $31,000. That upon demand appellee refused to pay appellant commission upon said sale in the sum of $960. Prayer for judgment, and all proper relief.
Paragraph II of the amended complaint is substantially similar to paragraph I, except it alleges the purchaser to be one L. E. Barclay.
Paragraph III of the amended complaint is similar to paragraphs I and II, except it avers that prior to October 22, 1946, appellee orally authorized appellant to sell the 160 acres mentioned in the written offer for $31,000 instead of $32,800 as provided in the written offer. That on October 22, 1946 appellee sold the 160 acre tract for $31,000, but upon demand refused to pay appellant 3% commission. Prayer for judgment for $930 and all proper relief.
Appellee's separate and several general demurrer to each paragraph of the amended complaint was sustained. Appellant refusing to plead further, judgment was rendered against him, from which this appeal is taken.
The sole question presented by this appeal is whether or not appellant is prevented from collecting the agreed 3% commission on the sale made, by reason of Sec. 33-104, Burns' 1949 Repl. providing as follows: '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 (1) person of 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: Provided, That any general reference to such real estate sufficient to identify the same shall be deemed to be a sufficient description thereof.'
Indulging the presumption in favor of appellant as against the demurrer, that he found a purchaser for the 160 acre tract, not for the sum of $32,800 as provided in the written contract but for the sum of $31,000, is he entitled to recover the agreed 3% commission on the latter sum?
Our courts have consistently held that Sec. 33-104, Burns' 1949 Repl., supra, applies to all contracts by which one person agrees to find or procure a purchaser for the real estate of another in consideration of a commission or reward. Bryan v. Mayo, 1919, 188 Ind. 548, 552, 553, 124 N.E. 873; Belleville Lumber & Supply Co. v. Chamberlin, 1949, 119 Ind.App. ----, 84 N.E.2d 60, 63.
Few cases with a factual situation like this one have come before our courts of appeal. In one such case our Appellate Court properly stated the applicable law thus: '* * * The consideration for which the land was to be sold was a material part of the contract, and a change in the terms of the contract, by which the parties agreed to sell for a different consideration, was such a material variance from the contract as written that no action would lie upon such altered contract, unless the alteration was evidenced by a writing signed by the parties sought to be charged.' (Authorities.) Wellinger v. Crawford, 1911, 48 Ind.App. 173, 175, 177, 89 N.E. 892, 93 N.E. 1051.
In Bryan v. Mayo, supra, this court, 188 Ind. on page 553, 124 N.E. on page 874, by Lairy, C. J., said: Annotation XVI, 44 L.R.A. p. 629.
Since neither paragraph I nor II of the amended complaint avers facts sufficient to show a performance by appellant of the alleged written contract sued upon, the general demurrer was properly sustained to each. Finding a purchaser for the 160 acre tract for the sum of $31,000 is not a performance of the contract to find a purchaser to pay $32,800. Since the contract sued upon is not exclusive, and specifically fixes the price at which the 160 acre tract must be sold, the courts may not by any process of interpretation or construction modify or change its clear and unambiguous terms. To do necessarily results in the remaking of the contract for the parties. This the courts may not do. Jenkins v. King, 1946, 224 Ind. 164, 174, 65 N.E.2d 121, 163 A.L.R. 397; Fishers Grain Co. v. Sparks, 1945, 223 Ind. 133, 139, 58 N.E.2d 932, 934; International Shoe Co. v. Lacy, 1944, 114 Ind.App. 641, 647, 53 N.E.2d 636; Miles v. Indiana Service Corp., 1933, 97 Ind.App. 400, 405, 185 N.E. 460.
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