Elmore v. Brinneman

123 N.E. 248, 70 Ind. App. 222, 1919 Ind. App. LEXIS 29

• Court: Indiana Court of Appeals
• Decided: May 15, 1919
• Docket: No. 9,855
• Status: Published

Opinion

Nichols, J.

This was an action brought by the appellees against the appellant to recover commission for the exchange of real estate owned by the appellant, for other real estate which appellees, as brokers, had for exchange. The complaint was in two paragraphs, to each of which'the appellant filed a demurrer, which demurrers were each overruled, and to which ruling the appellant excepted. Appellant then filed a general denial, and the cause, being at issue, was submitted to a jury for trial, and there was a judgment in favor of the appellees for $100. After motion for a new trial, which was overruled, the appellant now prosecutes this appeal.

- The errors relied upon for reversal are \ (1) Overruling the demurrer to the first paragraph of complaint; (2) overruling the demurrer to the second paragraph of complaint; (3) overruling the motion for a new trial.

The substance of the second paragraph of complaint, so far as is necessary for this decision is as follows: The appellant was the owner of certain real estate in Wells county, Indiana, in the complaint described, which he was desirous of exchanging for other real estate situate in Wells county, in the complaint described. Appellant placed his real estate ■with the appellees and directed them to exchange the same for the real estate which he desired as above mentioned, a cash difference to be paid to appellant of $500. Appellant agreed to pay appellees $100 if they were able to induce the owner of the second mentioned tract to exchange the -same for appellant’s lands upon the terms stated. The appellees induced such owner so to trade his farm for the one owned by the appellant, paying the cash difference of $500, and such exchange actually took place as the result of the efforts of the appellees. The complaint alleges nonpayment, and thát the amount agreed upon is due and unpaid. The first paragraph of the complaint is substantially as the second, though not so specific.

The appellant contends that, under §7463 Burns 1914, the contract, being an oral contract, is not valid, and that there can be no recovery upon it. This section was originally enacted March 5, 1901, at which time it was as follows: “That no contract for tne payment of any sum of money, or thing of value, as and for a commission or reward for the finding or procuring, by one 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.” The section was amended by the act of March 5,1913, §7463 Burns 1914, Acts 1913 p. 638, by adding a proviso thereto, which, however, does not affect it as to the question involved in this action. If this section covers a sale or purchase of real estate for a money consideration only, the demurrers were properly overruled, but if it includes also an exchange of real estate, then the demurrers should have been sustained. Before the enactment of this section, the Supreme Court of this state in the case of Falley v. Gribling (1891), 128 Ind. 110, 26 N. E. 794, had adopted Washburn’s definition of the word “purchase” (See 3 Washburn, Beal Property [6th ed.] §1824, p. 3), which defines it as including every mode of acquiring an estate known to 'the law, except that by which an heir, on the death of his ancestor, becomes substituted in his place, as owner, by operation of law. At the time of such enactment, Webster’s Dictionary defined a purchaser as being one who acquires an estate in lands by his own act or agreement, or who takes or obtains an estate by any means other than by descent or inheritance. See, also, Roberts v. Shroyer (1879), 68 Ind. 64.

1. 2. The terms “sale” and “purchase” are correlative terms. By the statute of frauds, §7462 Burns 1914, §4904 B. S. 1881, any contract for the sale of lands, to be valid, must be in writing, and signed by the party to be charged therewith. Under this section it was held in the case’ of Bradley v. Harter (1901), 156 Ind. 499, 506, 60 N. E. 139, that an oral agreement to accept conveyances of other lands in consideration for-lands sold is open to the objection of the statute of frauds. The legislature is presumed -to have had these holdings of the court in mind at the time of the enactment of the section of the statute here involved, and to have used the words therein with a meaning in harmony with that given by the courts. In the construction of statutes and in determining the meaning of the words and terms employed, we are to look to the meaning attached to such words and terms by the common law, and they are deemed to be employed in their known and defined common-law meaning. Truelove v. Truelove (1909), 172 Ind. 441, 86 N. E. 1018, 88 N. E. 516, 27 L. R. A. (N. S.) 220, 139 Am. St. 404. Under this interpretation of the law, the legislature must have intended that the finding of a purchaser for real estate included, not only tlm finding of some one who would pay a money price for the real estate offered for sale, but as well any one who by his own act was ready to acquire title to such real estate, by the payment of a valid - consideration therefor, whether in money or 'other thing of value. It has recently been held by this court, in the case of Boyd v. Greer (1919), ante 77, 123 N. E. 122, that the sale of land may take the form of an exchange, and that when this is done, in the absense of fraud, it has the same legal effect as if the agreed value thereof has been paid in money. In the case of Herr v. McConnell (1918), 67 Ind. App. 529, 119 N. E. 496, the following contract, omitting caption and signatures, was involved: “I hereby agree to pay to John McConnell Two Dollars and 50 cents per acre for trading my 615 acre farm at Hopkins Park, Ills, for garage at Hoopeston, Ills, when deal is closed,” and the court, in speaking of it, said that the section involved, being said §7463, supra, provides that contracts of the kind involved in that case shall not be valid unless the same shall be in writing and signed by the owner of such real estate. Under these authorities it is clear that the legislature intended that the purchaser may be not only one who was ready to pay a money consideration for real estate conveyed to him,, but that he may as well be one ready to exchange his real estate, or other property, in consideration therefor.

With this view of the law, we hold that an action cannot be maintained upon the oral contract which was the basis of this action.

The judgment is reversed, with instructions to the trial court to sustain the demurrer to each paragraph of the complaint.