Zimmerman v. Zehender

• Decision Date: 04 April 1905
• Docket Number: No. 20,527.,20,527.
• Citation: 73 N.E. 920,164 Ind. 466
• Parties: ZIMMERMAN et al. v. ZEHENDER.
• Court: Indiana Supreme Court

164 Ind. 466

73 N.E. 920

ZIMMERMAN et al.

v.ZEHENDER.

No. 20,527.

Supreme Court of Indiana.

April 4, 1905.

Appeal from Superior Court, Allen County; A. N. Henton, Judge.

Action by Charles M. Zimmerman and others against James Zehender. From a judgment for defendant, plaintiffs appeal. Transferred from the Appellate Court under Burns' Ann. St. 1901, § 1337u. Affirmed.

W. & E. Leonard, for appellants. George F. Felts, for appellee.

MONTGOMERY, J.

Appellants brought this action against appellee to recover compensation as agents for services rendered in procuring a purchaser for, and effecting a sale of, appellee's farm. The complaint was in five paragraphs, and the court sustained appellee's demurrer to each paragraph thereof, to which rulings appellants excepted, and, declining to plead further, judgment was rendered against them for costs.

The errors assigned require us to determine the sufficiency of facts alleged in each paragraph of the complaint to constitute a cause of action. The third paragraph of the complaint declares upon an oral contract for the payment by appellee of a reasonable sum of money as and for commission for the services of appellants in finding a purchaser for, and effecting a sale of, appellee's farm. A recovery for services of this character cannot be had unless such services were rendered in pursuance of a contract in writing. This paragraph was clearly insufficient, and there was no error in sustaining appellee's demurrer to the same. Section 6629a, Burns' Ann. St. 1901; Beahler v. Clark, 32 Ind. App. 222, 68 N. E. 613;Lee v. York School Tp., etc. (Ind. Sup.) 71 N. E. 956.

The other paragraphs of the complaint declare upon an employment and agreement, originally oral, to pay appellants for services as real estate agents. It is averred in the first and fourth paragraphs that they were to receive $300; in the second, a reasonable sum; and in the fifth, all money in excess of $2,000 for which they might sell the farm. Each paragraph alleges that appellants procured a purchaser for the farm, a sale and conveyance for $2,300, and payment and settlement of the purchase money. Each of said paragraphs further averred, in substance, that at the time of finding said purchaser for said farm appellants caused a written agreement to be prepared and executed by appellee and said purchaser, Wilson S. Spindler, wherein it was covenanted and agreed, as a part of the consideration of the purchase and sale of said land, that appellee would pay appellants, as his duly authorized agents, a sum of money theretofore agreed upon as and for their compensation in securing a purchaser for said land. A copy of said agreement was filed with and made a part of each of said paragraphs of complaint. The paragraph of said agreement relied upon for a recovery by appellants reads as follows: “(3) Said James Zehender further agrees that when said Wilson Spindler has complied with said contract to deliver or cause to be delivered a warranty deed in fee simple, free of all incumbrances whatever, and to compensate his authorized agents, Warner & Zimmerman, to the amount that has been and is now understood, and further agrees to give possession of said described premises thirty days from date of contract.” Section 6629a, Burns' Ann. St....