Bradford v. Laffey

OPINION OF THE COURT BY WHITING, J. The plaintiff brought his action against defendant to recover commissions for negotiating a sale of defendant’s land, on .•an alleged oral promise of defendant to pay him 5% on the" price paid. [464] Tbe defendant pleaded tbat this agreement or contract, was witbin tbe Statute of Frauds and must be in writing. Tbe District Magistrate sustained tbe plea and plaintiff appeals to tbis court. Tbe District Magistrate erred in sustaining tbe plea. “Tbe suit is not brought upon a contract for tbe sale of real estate, but upon a contract to procure a purchaser, which is valid without being in writing.” Fisher v. Bell, 91 Ind. 243. A promise to a real estate broker to pay him for negotiating a sale or a purchase of land is not witbin tbe Statute of Frauds, be tbe promise to pay a sum certain or a sum proportional to tbe price. Tbe broker has no interest in tbe land either before or after tbe transaction, and the promise is merely one to pay for work and labor. Need on Statute of Frauds, Sec. 756. Hosford v. Carter, 10 Abb. Pr. 453. Heyn v. Philips, 37 Cal. 529. Desmond v. Stebbins, 140 Mass. 339. Tbe defendant cites and relies upon MacPhail v. Buell, 87 Cal. 115, as in point and decisive of tbis case, where tbe court held tbat to entitle a broker in tbis class of cases to recover commissions, bis contract therefor must be in writing (citing Cal. Civil Code Sec. 1624, McCarthy v. Loup, 62 Cal. 302). Tbis decision was based on Sec. 1624, Cal. Civil Code which is set forth in tbe opinion of the court in McCarthy v. Loup, viz: “Tbe Code provides tbat ‘an agreement authorizing or empowering an agent or broker to purchase or sell real estate for compensation or a commission’ is invalid unless tbe same or some note or memorandum thereof be in writing and subscribed by tbe party to be charged or bis agent. It is clear therefore tbat tbe case relied on by defendant, being based on a specific statute governing such cases, cannot be authority her’e where we have no such statute. Our Statute of Frauds is Section 1053 of tbe Civil Code:— “No action shall be brought and maintained in any of tbe following cases: * * * G. F. Little for plaintiff. Hitchcock & Wise for defendant. Fourth: Upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them. * * * Unless the promise contract or agreement, upon which snch action shall be brought, or some memorandum or note thereof shall be in writing, and be signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.” The California Statute of Frauds is similar to ours and in. Heyn v. Philips, 37 Cal. 529, the court held that a contract to negotiate a sale of land and find a purchaser for the same for which the broker or agent was to receive a commission, is not a contract for the sale of land, or an interest in land, within the meaning of the Statute of Frauds. It was a mere contract of employment. The plaintiff has no interest, and was to have no interest whatever in the land, as such. The judgment of the District Magistrate is reversed, the demurrer ordered to be overruled and the case remanded to the District Magistrate of Hihx Defendant to pay costs.