Barnett v. Gluting

29 N.E. 154, 3 Ind. App. 415, 1891 Ind. App. LEXIS 265

• Court: Indiana Court of Appeals
• Decided: November 10, 1891
• Docket: No. 152
• Status: Published

Opinions

Reinhard, J. —

This action was commenced in the Allen Circuit Court. The appellees sued the appellant for the recovery of an alleged,commission due them upon the sale of certain real estate. There was a demurrer to the complaint, which was overruled, but no point is made upon this ruling in the appellant’s brief. Issues were joined, the cause was tried, and there was a finding for the appellees. A new trial was granted, however, and then the venue of the cause was changed to the Whitley Circuit Court. Here the cause was submitted for trial to a jury, again resulting in a verdict in favor of the appellees. There was a motion by the appellant for a new trial, which was overruled and judgment rendered upon the verdict, from which this appeal is taken.

The controlling question presented by the assignment of errors and motion for a new trial is the sufficiency of the evidence to sustain the verdict.

The appellees’ theory of the evidence is that appellees, Gluting and Bauer, were real estate brokers in the city of Fort Wayne; that the appellant, through her husband, who was her agent, employed the appellees to sell for her a parcel of real estate in said city for the price of $33,000, agreeing to pay the appellees therefor a commission of $500; that Gluting, one of the appellees, negotiated with one Morgan for the sale of the property; that Morgan wanted the property for a bank building for a bank of which he was vice-president ; that, after Barnett had notice of the negotiations, he himself sold the property to Morgan for the bank, making the conveyance, however, to another party, then cashier of the bank, who still holds the legal title, and that in fact the bank has paid and agreed to pay the entire purchase-money ; that the appellees being the procuring cause of the sale, it matters not to whom the deed was actually made, they are entitled to recover their commission.

We have given the evidence a careful examination, and our conclusion is that it fairly tends to establish the appellees’ claim. We do not regard it as useful to set out in this opinion even a synopsis of the voluminous evidence,’ and have, therefore, not undertaken to do so. We regard the facts proved as sufficient to entitle the jury to draw the deductions which resulted in a verdict for the appellees.

A real estate broker employed at a stipulated commission in case he finds a purchaser for certain designated real estate, at a price fixed, who produces a purchaser ready, able and willing to purchase at the price, and upon the terms fixed, with notice to his employer, is entitled to his commission. Fischer v. Bell, 91 Ind. 243.

The fact that the conveyance was made to some person other than the real purchaser, if it was the same transaction, and resulted in a sale of the property of which the broker was the procuring cause, would not debar the latter from recovering his commission. The question in such case is not the extent of the services rendered, or what particular exertions were made by the broker, but whether the sale was the result of such services and exertions. 2 Am. and Eng. Encyc. of Law, 582.

Whether the appellees were the procuring cause, and whether the appellant’s husband was her authorized agent in the transaction, were questions of fact for the jury, and from the evidence before them they had a right to reach the conclusions at which they arrived. The verdict having received the sanction of the trial court, we do not feel warranted in disturbing it.

The appellant also complains of the ruling of the court in admitting certain evidence as to what the customary price was for the kind of services the appellees performed in the premises.

The complaint was in two paragraphs, the first being upon a special contract, and the second upon a quantum meruit. The jury found for the appellees only on the first paragraph. The evidence of a custom could have reference only to matters under the second paragraph, and could in no way have influenced the verdict upon the first. Of this the jury were amply apprised in the instructions of the court. If, therefore, the evidence was improperly admitted the error was harmless.

Error is claimed also on account of the giving of certain instructions by the court, and the refusal to give others requested by the appellant.

We have examined the instructions given, and think they are fairly within the issues, and state the law of the case correctly. We have also examined those refused, and think they are fully covered by instructions which were given. As they present no new or important questions, we do not feel called upon to set them out in this opinion.

The appellees have urged upon us with much earnestness the point that the evidence and bill of exceptions are not properly in the record. The conclusion we have reached renders it unnecessary that we should decide this question.

Filed Nov. 10, 1891.

A careful examination of this case has convinced us that it has been fairly tried, and no substantial ground has been shown for a reversal.

Judgment affirmed.