Laker Land & Loans v. Nye

BUDGE, J. This is an action by appellant as assignee to recover from the respondent $1,400 balance of a real estate broker’s commission for procuring a buyer for the real estate of the respondent. Respondent’s demurrer to appellant’s third amended complaint was sustained by the district court, and upon appellant’s failure to further plead within the time allowed, the cause was dismissed. The appeal is from the order of dismissal. The complaint alleges that Butler Island consists of 4,000 acres of land situate on the South Fork of the Snake River; that the respondent was the owner of a farm of 200 acres thereon, in Jefferson county, Idaho, the detailed description of which farm is set out by legal subdivisions according to government survey; that this farm was long prior to May 7, 1919, commonly and generally known as the “Nye Butler Island Farm” and was the only real estate owned by respondent on Butler Island; that respondent authorized one A. Laker Cook of Idaho Falls, Idaho, appellant’s assignor, to sell said premises by a written instrument, signed by respondent, of which instrument the material part is as follows: *796 “CONTRACT. “May 7, 1917. “To A. Laker Cook. “For and in consideration of One Dollar ($1.00) the receipt of which is acknowledged, I hereby appoint you as agent to make sale of the real property herein described as 200 acres of Butler Island Farm, for the price of $6,500.00 upon the following terms: .... ” It does not directly appear from the complaint where this agreement was executed, but it may fairly be inferred that it was made at the address of said A. Laker Cook, in Bonneville county. The complaint goes on to allege that said A. Laker Cook procured a buyer for the property, took a deposit on the purchase price, retained part and paid the balance over to respondent; that the respondent completed the sale personally, and that $1,400 commission is still due. The sole question presented by appellant’s brief is whether the allegations of the complaint may be considered in aid of the description of the real estate contained in the agreement so that the complaint will state a cause of action under C. S., sec. 7979, which provides that: “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 person of a purchaser of real estate of another shall be valid unless the same shall be in writing, signed by the owner of such real estate, or his legal, appointed and qualified representative.” Under the rule stated in Murphy v. Livesay, 34 Ida. 793, 197 Pac. 536, to comply with the requirements of this statute, the commission contract must give a description of the real estate involved no less certain in its terms than would be required under any other phase of the statute of frauds, or to meet the essentials in an action for specific performance. In actions for specific performance, oral and extrinsic evidence is admitted for the purpose of identifying the land described in the writing, and applying the description therein contained, but not for the purpose of supplying a *797 description, or adding necessary matters to a description insufficient and void on its face. (Allen v. Kitchen, 16 Ida. 133, 100 Pac. 1052.) In the case at bar the allegations of the complaint extrinsic to the written agreement supply state, county, detailed legal subdivisions according to the government survey, and the ownership, to the description contained.in the contract. We think that this is the supplying of a description, and not the identification of a description already given. The fact that appellant’s assignor may have completed his undertaking by the finding of a purchaser for the real estate, and that the owner sold to the buyer thus procured, would not give him any right to recover compensation for his services unless he has such a written agreement with the owner for the payment of a commission as will comply with the requirements of C. S., sec. 7979. (Weatherhead v. Cooney, 32 Ida. 127, 180 Pac. 760.) A demurrer may properly be interposed to a complaint which seeks recovery of commission for procuring a purchaser for real estate when the commission contract set out in the complaint fails to describe by itself, with the required certainty, any definite tract of land. (Cushing v. Monarch Timber Co., 75 Wash. 678, 135 Pac. 660.) As the complaint in the instant case shows that the description of the real estate contained in the written commission agreement is insufficient, and extrinsic evidence being inadmissible to remedy that defect, and as performance alone does not give the broker a right of action, we think respondent’s demurrer is well taken. The order of the district court dismissing the cause is accordingly affirmed, and the costs are awarded to respondent. William A. Lee, C. J., Wm. E¡. Lee, Givens and Taylor, JJ., concur. ■