Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

lant to other express companies, but which it denied to appellee. In fact, three specific cases are given of express packages tendered by appellee to appellant which the latter refused to receive and carry. Among other things, it is shown that appellee is a responsible express company, and is seeking by this action to compel appellant by a mandate of the court to grant to it the same terms, facilities, etc., which appellant gives or grants to other responsible express companies. It is undoubtedly true that at common law no such duty or duties would rest upon appellant as appellee in this action seeks to compel it to perform. By the common law the duty of a common carrier is to carry for all persons for a reasonable remuneration to be paid by each, but such carrier is under no obligation to treat all of its customers or patrons equally alike, hence in the absence of the statute in question appellee would have no standing to ask that appellant discharge the duties which it demands. The insufficiency of the common law to afford a remedy was no doubt recognized by the Legislature, and induced the enactment of the act in controversy. Formerly the elasticity of the common law and its adaptability to apply to and govern new conditions and things was regarded as one of its crowning virtues, but in the great commercial age in which we now live the common law has not, in all respects, been equal to the many new conditions or emergencies which have arisen, or been able to keep pace with the great march of events, hence the Legislature has been from time to time required to enact statutes to meet, regulate, or control the great interests which affect the rights and common welfare of the people. Such is the character of the act now under consideration. It is not tenable to argue that this act operates to deprive appellant company of a right to demand carrier charges, for it only operates to take away the right of appellant to demand the prepayment of such charges from appellee while it waives the prepayment thereof from all other express companies, and all other persons who ship or express freight or goods over its lines. Regardless of the statute, appellant still has the right to require prepayment of such charges provided it treats appellee and all other persons equally in this respect. Or, in other words, by the provisions of the statute in question, it must, under like or similar conditions or circumstances, treat "Trojans and Tyrians without discrimination." In the appeal of Adams Express Co. v. State, supra, this court said: "The purpose of the statute was to prevent express companies and other common carriers doing business in this state from unfairly and unjustly discriminating against other persons or corporations engaged in the same business, by extending to some carriers advantages and facilities which were denied to others. Of late years, many important enactments of this character, state and fed

eral, have been found necessary for the protection of the interests of the people. All rules, practices, customs, and usages designed to destroy competition in business, or necessarily having that effect, are inimical to the public well-being, and were condemned by the common law. The act under examination belongs to that class of legislation which has been found necessary to prevent the destruction of competition, and the exclusive possession by a few of the great fields of industry and enterprise. It has never been denied that in the exercise of the police power property rights may be sacrificed, natural privileges curtailed, and liberty restricted or taken away. As the public peace, safety, and well-being are the very end and object of free government, legislation which is necessary for the protection and furtherance of this object cannot be defeated on the ground that it interferes with the common-law rights of some of the citizens, or even deprives them of such rights," citing numerous authorities.

It is evident that if appellant advanced the accrued charges to one connecting carrier, then it must advance such charges to other responsible express companies. It was the vice of discrimination in the receiving and transportation of express matter which the statute intended to prevent. It in effect commands that the express carrier shall receive and carry upon the same terms merchandise and other goods delivered to it for carriage by other responsible express companies or other consignors. The law applies equally to both appellant and appellee and each can demand of the other the advantages of all facilities, customs, usages, terms, and credits which such other company grants or allows to its most favored patron or customer. Adams Express Co. v. State, supra. In the latter case we held, and properly so, that the act in question did not attempt to regulate interstate commerce. The same point is again advanced by appellant in this appeal. But it cannot be said that everything which may affect commerce is regulation thereof within the meaning of the federal Constitution. Chicago, etc., Co. v. Iowa, 94 U. S. 154, 24 L. Ed. 94; Memphis, etc., Co. v. So. Express Co., 117 U. S. 1, 6 Sup. Ct. 542. 29 L. Ed. 791; Missouri, etc.. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. 488, 42 L. Ed. 878. Even if it can be asserted that this statute incidentally operates to affect interstate commerce, still, that would not render it invalid for, in the absence of legislation on the part of Congress, the decisions of the Supreme Court of the United States affirm that a state may, under its police power, pass reasonable laws, local in their operation, although they may incidentally affect interstate commerce. See U. S. Express Co. v. State, 164 Ind. 196, 73 N. E. 101, and cases cited on page 204 of 164 Ind., page 104 of 73 N. E.

In conclusion we adjudge that the statute herein involved does not violate any of the provisions of the state or federal Constitution, as pointed out and relied upon by appellant. There are some other questions presented which we need not expressly refer to as they were presented and considered and properly decided adversely to the contention of appellant's counsel in Adams Express Co. v. State, supra.

We find no reversible error, and the judgment is, therefore, affirmed.

In the case last cited, the U. S. Express, provisions of the statute upon which this acCo. v. State, supra, the validity of an act tion is founded. By its terms appellant is of the Legislature of this state, requiring ex- only in effect commanded to treat appellee press companies to deliver express matter to as it treats other express companies, under all persons to whom the same was consign- like conditions and circumstances. The finded who resided within the limits of cities ing of the court is sustained by the evidence having a population of 25,000 or more, was upon every material point. involved. It was urged in that appeal, as in the case at bar, that the act in question operated to deprive express companies of liberty and property without due process of law, and therefore it was antagonistic to the fourteenth amendment of the Constitution of the United States. This contention the court denied. In passing upon the question as presented in that appeal, we said: "Under the police power, persons may be deprived of both liberty and property, at least in a sense, and that without redress, provided that it be by due process of law. Of course, the mere act of the legislative power does not necessarily amount to due process of law, or, what is its equivalent, the law of the land. McKinster v. Sager (1904) 163 Ind. 671, 72 N. E. 854, 68 L. R. A. 273, 106 Am. St. Rep. 268, and cases there cited. However, every presumption must be indulged by the courts which the circumstances reasonably admit of that the legislative authority was warranted in enacting the statute. 'While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some dividuals from all contracts, as well as all individuals from some contracts:' Frisbie v. United States (1895) 157 U. S. 160, 165, 15 Sup. Ct. 586, 39 L. Ed. 657."

The second, third and fourth paragraphs of appellant's answer to appellee's complaint are substantially the same as were those considered, and held to be insufficient in stating a cause of defense in Adams Express Co. v. State, supra. It may be said, however, that these several paragraphs, and likewise the fifth paragraph of answer, constitute nothing more than an argumentative denial and the facts therein alleged, so far as competent, were admissible under the general denial which constituted the first paragraph of the answer. The Jeffersonville Water Supply Co. v. Ritter, 146 Ind. 521, 45 N. E. 697; Indiana, etc., Gas and Oil Co. v. O'Brien, 160 Ind. 266, 279, 65 N. E. 918, 66 N. E. 742.

The ruling of the court, therefore, in sustaining the demurrer thereto, even if erroneous, under the circumstances was harmless. Counsel for appellant argue that the fifth paragraph of answer presents the defense that appellee could not secure injunctive relief at common law. This we have conceded, but, as previously stated, the action is based upon the statute in question and not upon the common law. There was no error in denying the motion to modify the decree. The latter is in harmony with the finding of the court, and it fully conforms to the

MONTGOMERY, J., did not participate in this decision.

(167 Ind. 319)

AMERICAN EXPRESS CO. v. STATE. (No. 20,563.)

(Supreme Court of Indiana. Nov. 2, 1906.) APPEAL-HARMLESS ERROR-RULINGS ON DE

MURRER.

Where the matter, alleged in a paragraph of the answer, was admissible under the general denial, the sustaining of a demurrer to such paragraph, if erroneous, was harmless.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4094.]

Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.

Action by the state against the American Express Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Baker & Daniels and J. E. Henley, for appellant. R. G. Miller, A. M. Hadley, and Brooks & Brooks, for the state.

JORDAN, C. J. This action was commenced in the Lawrence circuit court by the state of Indiana, through the proper prosecuting attorney, to recover the penalty provided by section 4 of an act of the Legislature, approved March 7, 1901 (Acts 1901, p. 149; Burns' Ann. St. 1901, §§ 3312b and 3312f). The cause was venued to the Monroc circuit court, wherein, upon the issues joined, it was tried by the court. There was a special finding of facts and a recovery of $500 was awarded the state. Upon the special finding, the court stated its conclusions of law in favor of the state (appellee herein), to which appellant duly reserved its exceptions. Judgment was rendered upon the finding in favor of the state and against the appellant in the sum of $500, together with costs.

The action appears to be based on the fact that appellant company had violated the provisions of section 1 of said statute by refus. ing to accept from the Southern Indiana Ex

Defendant agreed to pay plaintiff $1 an acre for finding a purchaser for a certain farm at $37.50 per acre. After introducing the purchaser, but before sale, defendant wrote plaintiff that it had no hopes of making a sale to such purchaser, and that the owners of the land required $35 net per acre, which price had been quoted to the proposed purchaser; that if plaintiff still desired to assist and make his commissions from a purchase price over $35 per acre he was at liberty to proceed, otherwise the arrangement would be revoked. Held, that such letter did not constitute a revocation of plaintiff's authority so as to deprive him of the right to contract commissions on the subsequent consummation of a sale to such purchaser.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Brokers, § 45.]

4. SAME-CONTRACT-PERFORMANCE.

press Company, an express company doing | 3. SAME-CONTRACT-RESCISSION.
business in the state of Indiana, an express
package for carriage over and upon the lines
of appellant to a point within the state of
Indiana. Appellant's answer to the com-
plaint consisted of six paragraphs, the first
being the general denial. A demurrer for
want of facts was sustained to all of the
paragraphs except the first. Each of the
paragraphs to which the demurrer was sus-
tained, under the averments thereof, was
nothing more than an argumentative denial,
and the facts therein set up, so far as they
could be pertinent to the action, were admis-
sible under the general denial which remained
a part of the answer. Consequently the
ruling of the court on the demurrer, even if
erroneous, under the circumstances would be
harmless to appellant. American Express
Co. v. Southern Indiana Express Co. (at this
term, No. 20,441) 78 N. E. 1021. In fact it
can be said that virtually the same questions
in regard to the constitutional validity of the
act herein involved and the right of the state
to recover the penalty provided thereby under
the facts alleged in the complaint and found
by the court in its special finding, and the
conclusions of law thereon, are presented for
our decision, as were involved and presented
in the Adams Express Co. v. State, 161 Ind.
328, 67 N. E. 1033, and American Express
Co. v. Southern Indiana Express Co., supra.
On the authority of these decisions the
Judgment below should be affirmed.
Judgment affirmed.

MONTGOMERY, J., did not participate in this decision.

(168 Ind. 29)

PROVIDENT TRUST CO. v. DARROUGH. (No. 20,844.) 1

(Supreme Court of Indiana. Nov. 14, 1906.) 1. BROKERS-COMMISSIONS-CONTRACTS INTER

SE-STATUTES-APPLICATION.

Burns' Ann. St. 1901, § 6629a, declares that no contract for the payment of any sum as a commission for finding a purchaser for real estate of another shall be valid unless the same shall be in writing, signed by the owner of the real estate or his legally appointed and duly qualified representative. Held, that such section did not invalidate a written contract between real estate brokers by which one of them agreed to pay the other $1 an acre for finding a purchaser for land which the first broker had for sale.

2. SAME-ESTOPPEL.

Where defendant, a real estate broker, contracted to pay plaintiff, another broker, $1 per acre if he would furnish a. purchaser for a certain farm at $37.50 per acre, including the crops, and defendant, with full knowledge of plaintiff's rights thereunder, voluntarily sold the farm for $35 per acre, without the crops, to a purchaser furnished by plaintiff, plaintiff was not estopped by his silence after introducing such purchaser and defendant had informed him of a raise in the price, to claim full commissions on the subsequent consummation of the sale.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Brokers, § 85.]

1 Rehearing denied.

Where a contract for broker's services only required him to find and furnish a purchaser to whom a sale could be made by defendant, plaintiff's commissions were earned when a sale was effected to a customer introduced to defendant by him.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Brokers, § 70.]

Appeal from Circuit Court, Whitley County; Jas. W. Adair, Judge.

Action by John S. Darrough against the Provident Trust Company. From a judgment for plaintiff, defendant appeals. Case transferred from Appellate Court under Burns' Ann. St. 1901, § 1337u. Affirmed.

Marshal, McNagny & Clugston, for appellant. A. A. Adams, for appellee.

MONTGOMERY, J. This action was brought by appellee to -recover compensation for services rendered in connection with the sale of real estate. The complaint was in a single paragraph, to which an answer in five paragraphs was filed. Appellee's demurrer to the second, third, and fourth paragraphs of answer was sustained. The first paragraph of answer was a general denial, and the fifth alleged a revocation of appellee's authority to sell the land involved. A trial by the court was had, a special finding of facts made, with conclusions of law in favor of appellee, and judgment rendered accordingly. It is charged on appeal that the court erred in overruling appellant's demurrer to the complaint, in sustaining appellee's demurrer to the second, third, and fourth paragraphs of answer, in each conclusion of law stated, and in overruling appellant's motion for a new trial.

The merits of the controversy and the questions argued can be most concisely presented by setting out the substance of the special finding of facts, which is as follows: That appellant is a corporation organized in the year 1899 and engaged in a general trust business, and also in selling real estate on commission, and since its organization Martin L. Galbreath has been general manager of the business of the corporation, and given his entire time to the management and direction of its affairs, and that, prior to June

12, 1902, appellant had for sale a certain 400acre farm, known as the "Nancy De Vault Farm." That appellee is a resident of the town of Watseka, Ill., and by occupation is a real estate dealer, and, having learned that appellant had said farm for sale, wrote and sent the following letter: "Watseka, Ill., June 12, 1902. Mr. M. L. Galbreath, Columbia City, Ind.-Dear Sir: I understand you have a farm of 400 acres near Collins Station, Indiana, at $37.50. If so, and there were the customary $1.00 per acre for me, I may be able to get you a buyer. I would not buy it myself as I have already bought a half section just north of Collins for much less per acre. Write me best price and terms, also add $1.00 per acre for my commission if you wish me to get you a buyer. Truly yours, John S. Darrough." That said letter was duly received, and, on the 14th day of June, 1902, appellant wrote and sent to appellee the following letter: "Columbia City, Ind., June 14, 1902. Mr. John Darrough, Watseka, Ill.-Dear Sir: We herewith enclose rough sketch of the farm in question, which will give you a good idea of its location with reference to your farm in the same locality. We think this farm is a good bargain at the nominal figure of $37.50 per acre. At this price we would let the crops now growing on the farm go with it, provided the deal can be made before we have to look after the harvesting. There are nearly thirty acres of good wheat, twenty-five acres of corn planted, and quite a lot of oats. There will be over fifty tons of hay to be made. The wheat and oats are to be threshed and put in barn (landlord's share is one-half), the hay is to be made and put in barn but the corn is to be cut and shocked and the same is to be divided half and half on the ground. There are three barns, two good houses, and a poor tenant house, a fine hog house and plenty of corn crib room, good water. In fact it is a fine farm and will bear close inspection. There is some rough land on it and about 16 or 18 acres of muck of the same kind which your farm has, well watered and located in a fine neighborhood near good school and churches. The enclosed diagram will show the roads and the exact description of the farm, with its relative position to the roads. The railroad barely touches it, making less than eight rods frontage on the road. We will give a perfect merchantable title as shown by an abstract of the same, warranty deed, and will pay all taxes payable and collectible in the year 1902. While it seems to us a liberal commission at $1.00 an acre, we will allow it in order to close the deal. We will pay the expenses of livery hire in the examination of the land for all customers that you may bring or send to us. Trusting that you may find it to your interest to push the matter along as speedily as possible, we remain respectfully yours, Provident Trust Co. Countersigned:

M. L. Galbreath." That this letter was received by appellee, who at once undertook to procure and send to appellant a purchaser for said farm, and, in order the better to describe the same to prospective purchasers, came to Whitley county, Ind., and personally inspected the land. That among the persons seen by appellee in regard to purchasing the farm was one A. M. Culver, residing at the town of Sheldon, Ill., who, about 10 days thereafter, came to Whitley county to look at said farm, and upon his arrival at Columbia City went to the office of appellant and introduced himself to the general manager as a man sent by appellee to look at the De Vault farm. That appellant's general manager took Culver to see the farm, and offered the same to him at $35 per acre without the crops, and at $37 or $37.50 per acre with the crops, but Culver declined to pay the price asked, and offered $30 per acre, but no sale was closed. That on July 27, 1902, appellee wrote appellant as follows: "July 27th, 1902, Mr. M. L. Galbreath, Columbia City, Ind.Dear Sir: As I came home I stopped off at Sheldon and had a talk with Mr. Culver. He said he liked the farm fairly well but it has lots of hard work to be done, and he said you wanted 6 per cent. on loan on deferred payments. A straight 5 per cent. 5year loan commands a premium here, so I wish you would either make the terms onehalf cash and 5 per cent. on deferred payments or one-half cash and you make the loan at 5 per cent. at 5 years. It would help the chances of sale very much. Hoping we may be able to sell the farm, I am truly yours, John S. Darrough." This letter was duly received, and on August 1, 1902, appellant, by its said general manager, replied as follows: "Mr. John S. Darrough, Watseka. Ill.-Dear Sir: Mr. Culver spent two days here this week and we made a thorough examination of the big farm, and the truth is that he likes the farm very well but thinks there is too much work to be done for one so old as he, and for that reason we have no hopes of making a sale to him. Besides this, some of the heirs are of the opinion that we have quoted the land too low and that it must net them $35.00. This is the price at which we quoted the land to Mr. Culver, and we will be compelled to make it net the heirs that amount. If you still desire to assist. us in the sale and think you can make it go at enough over $35.00 to pay you for your trouble, you are at liberty to proceed, but if we will have to allow a commission on the bill at the nominal figure of $35.00, we will be compelled to revoke all former arrangements on this tract. We will divide with you on all other lands. We are respectfully yours, M. L. Galbreath." That about August 1, 1902, Culver again came and examined the farm, but did not buy, and, on October 1, 1902, appellant's said general manager wrote inviting him to come to Whitley county,

and examine other lands which appellant had for sale, and, in response to the invitation, Culver came and examined other lands, but was not pleased, and requested another examination of the De Vault farm. After again looking the land over, and before returning, he bought the farm at $35 per acre without the crops, and has paid the purchase price in accordance with the terms of the purchase. That after such sale to Culver, on or about October 10, 1902, appellee demanded of appellant the sum of $400, as his commission for securing and sending a puchaser for said farm, but appellant refused payment, and has not paid the same, and, on October 15, 1902, appellant, by its general manager wrote appellee the following letter: "Columbia City, Ind., Oct. 15th, 1902. Mr. John Darrough, Watseka, Ill.-Dear Sir: From the contents of your favor of the 14th instant, we infer that you must refer to my letter addressed to you on June 14th, but in order that you may be set right it will be necessary to again read our communication bearing date of August 1st, wherein we revoke all former arrangements concerning the sale of the land in question. Trusting that your sense of honor will direct you aright in this matter, we remain respectfully yours, M. L. Galbreath." That Culver was procured to come and examine the farm wholly through the efforts of appellee, and no one else had anything to do in opening negotiations with him for the purchase of the land, and that appellee was the efficient cause in securing a purchaser for, and consummating a sale of, said farm. .Upon these facts the court stated, as conclusions of law, that there had been no rescission of the contract, and that appellee was entitled to recover of appellant the sum of $400, with costs of suit.

The point chiefly relied upon by appellant for a reversal of the judgment is that the contract sued upon was not alleged or shown to have been signed by the owner of the real estate or his legally appointed and duly qualified representative. The statute upon which this contention is founded reads as follows: "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 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." Section 6629a, Burns' Ann. St. 1901. The manifest purpose of the statute was to protect owners of real estate against doubtful and conflicting claims for services as alleged agents in connection with real estate sales. It is within our judicial knowledge that numerous controversies and lawsuits arose from such claims. These contracts are now required to be in writing, signed by the owner or his duly authorized agent, so that there may be no doubt of the existence of the con

tract, or dispute as to its provisions. In an action for commissions against the owner of real estate sold, a substantial compliance with the terms of the statute will be required. Zimmerman v. Zehendner, 164 Ind. 466, 73 N. E. 920; Beahler v. Clark, 32 Ind. App. 222, 68 N. E. 613. The operation of the statute will not be extended further than necessary to make its spirit and purpose effective. The owner of the real estate is not involved in this controversy and the contract sued upon is not tainted with illegality unless wholly condemned by the statute quoted. We can conceive of no reason why such a contract in writing should be outlawed by legislative fiat, and in our opinion the Legislature did not intend by this enactment to provide a way for one party to repudiate his covenants in writing after receiving the stipulated consideration from the other. The object of the law was, not to denounce as invalid contracts in writing which were always and everywhere valid before, but only to require the substitution of written for parol agreements in order to bind owners of real estate for the payment of commissions on sales. The written contract in suit being properly executed by appellant is not in conflict with the statute under consideration, but is valid and enforceable. We accordingly hold that the court did not err in overruling appellant's demurrer to the complaint, or in sustaining appellee's demurrer to the third paragraph of answer, or in stating the second and third conclusions of law.

The second paragraph of answer, as construed by appellant's counsel, was a plea of estoppel. It is insisted that appellee was silent when he should have spoken, and that appellant was thereby misled. A fatal defect in the pleading, as we view it, is that appellant at all times had equal and full knowledge of appellee's right to compensation, and was not warranted in assuming from appellee's mere silence that he had relinquished his interest in a sale of the farm to Culver. It is clearly shown that the contract to sell was a continuing one, and the price was fixed at $37.50 per acre including the crops, if sold before harvest. Appellee found and furnished the purchaser, and appellant voluntarily quoted the price at $35 per acre without the crops. We are unable to say, from the facts pleaded, that appellant was injured by the change in the terms of the sale, and are of opinion that the answer was insufficient, and appellee's demurrer thereto was correctly sustained.

The fourth paragraph of answer in an argumentative way attempts to plead a revocation of the agreement sued upon by appellee. We are unable to concur in the conclusions of the pleader. A proper construction of the letters exhibited will not sustain the fact alleged-that the contract between appellant and appellee was rescindedand it is a familiar principle that the sub

« ΠροηγούμενηΣυνέχεια »