Smith v. Aultz

Jackson, C. It is alleged, in effect, in the plaintiff’s petition that the parties waived a written contract and entered into a verbal agreement, by the terms of which the defendant agreed to accept the net sum of $2,200 for certain lands, and that the plaintiff was to accept in full payment for his services for the sale of the land all that the land might be sold for above the said sum of $2,200; that the plaintiff procured a purchaser, to whom the defendant sold the land for the sum of $2,500, of which sum the de [454] fendant had paid to the plaintiff; $100, and no more, and that he refused to pay the plaintiff any further or greater sum; that there was due the plaintiff on the contract the sum of $200, for which amount he prayed judgment. The defendant interposed a general demurrer to the petition, and from the judgment of the district court sustaining the demurrer the plaintiff appeals. The judgment is fully justified by our holding in Barney v. Lasbury, 76 Neb. 701. We there held, substantially, that, in whatever language the cause of action might be couched, for all practical purposes it was an action for compensation for services rendered as real estate brokers, and is defeated by that section of our statute which provides that every contract for the sale of lands between the owner thereof and any broker or agent employed to sell the same shall be void unless the contract is in writing, subscribed by the owner of the land and the broker or agent. The conclusion in that case is in accord with the former holdings of this court cited in the body of the opinion. The judgment of the district court was right, and it is recommended that it be affirmed. Duffie and Albert, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.