Baker v. Brewer's Estate

Enloe, J. — Appellant filed his verified claim against the estate of Orlando C. Brewer, deceased, which estate was then pending in the Sullivan Circuit Court, to recover $4,400 as commission for effecting the sale of certain real estate. . The claim was based upon two written commission contracts, each of which provided that said Brewer agreed “to accept $135 per acre for said property and to pay a commission of $10 per acre.” After the commission contracts were entered into, appellant caused a written contract to be entered into for the sale of real estate between said Brewer and one Vanwey. The description of the real estate owned by said Brewer and involved in this latter contract of sale was 300 acres in Township 9, Range 10, Section 9; also 140 acres in Township 9, Range 10, Section 10, all in Sullivan county, Indiana. There was a provision in the contract to the effect that in case of failure of Vanwey to make either of the payments or perform any of the covenants on his part thereby made and entered into, the contract should, at the option of Brewer, be forfeited and determined; also a further provision that if said Vanwey could not sell his 126 acres where he then lived, the contract was null and void. Vanwey did not sell his said farm, and did not carry out the contract with Brewer. Because [145] of procuring this contract, appellant claimed that his commission was due and this action resulted. The case was submitted to a jury, and at the close of appellant’s evidence, appellee filed a motion requesting the court to instruct the jury to return a verdict for appellee. Thereupon appellant filed a motion requesting the court to instruct the jury to return a verdict for appellant, assessing his damages at $4,400. Appellant’s motion was overruled, and appellee’s motion was sustained, the jury was instructed accordingly, and returned a verdict for appellee. After appellant’s motion for a new trial was overruled, judgment was rendered for appellee, and this appeal followed. The substantial question presented by the motion for a new trial is as to whether the court erred in giving the jury a peremptory instruction to return a verdict for appellee. 1,2. The claim was for a commission earned under the contract entered into between the appellant and said deceased. It proceeded upon the theory that appellant had done all things by him to be done under said contract. This could be satisfied by: (a) Proof of an actual sale and transfer of the lands described; or, (b) by proof that the appellant had procured a purchaser who was ready, willing and able to purchase said lands upon the terms stated, and that deceased had refused to sell; or, (c) by proof that by and through the procurement of appellant, a third party had entered into a valid executory contract with the deceased for the purchase of said lands. A careful reading of this record fails to disclose any evidence which will satisfy either of said conditions. The court did not err in giving said instruction, and the judgment is therefore affirmed. Nichols, J., not participating.