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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 circuinstances, 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 examina. tion 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 nec. essary 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. Tl* 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 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 In conclusion we adjudge that the statute the case at bar, that the act in question herein involved does not violate any of the operated to deprive express companies of provisions of the state or federal Constituliberty and property without due process of tion, as pointed out and relied upon by aplaw, and therefore it was antagonistic to the pellant. There are some other questions prefourteenth amendment of the Constitution of sented which we need not expressly refer to the United States. This contention the court as they were presented and considered and denied. In passing upon the question as pre- properly decided adversely to the contention sented in that appeal, we said: “Under the of appellant's counsel in Adams Express police power, persons may be deprived of Co. v. State, supra. both liberty and property, at least in a sense, We find no reversible error, and the judgand that without redress, provided that it ment is, therefore, affirmed. be by due process of law. Of course, the mere act of the legislative power does not MONTGOMERY, J., did not participate in necessarily amount to due process of law, or, this decision. 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.

(167 Ind. 319) 268, and cases there cited. However, every

AMERICAN EXPRESS CO. V. STATE. presumption must be indulged by the courts

(No. 20,563.) which the circumstances reasonably admit of

(Supreme Court of Indiana. Nov. 2, 1906.) that the legislative authority was warranted APPEAL-HARMLESS ERROR-RULINGS ON DEin enacting the statute. "While it may be

'

MURRER.

Where the matter, alleged in a paragraph conceded that, generally speaking, among the of the answer, was admissible under the general inalienable rights of the citizen is that of the denial, the sustaining of a demurrer to such liberty of contract, yet such liherty is not paragraph, if erroneous, was harmless. absolute and universal. It is within the un- (Ed. Note.--For cases in point, see vol. 3,

Cent. Dig. Appeal and Error, $ 4094.] doubtedl power of government to restrain some dividuals from all contracts, as well Appeal from Circuit Court, Monroe Counas all individuals from some contracts:' ty; Jas. B. Wilson, Judge. Frisbie v. United States (1895) 157 U. S. 160, Action by the state against the American 165, 15 Sup. Ct. 586, 39 L. Ed. 657."

Express Company. From a judgment in The second, third and fourth paragraphs of

favor of plaintiff, defendant appeals. Afappellant's answer to appellee's complaint firmed. are substantially the same as were those Baker & Daniels and J. E. Henley, for apconsidered, and held to be insufficient in

pellant. R. G. Miller, A. M. Hadley, and stating a cause of defense in Adams Express Brooks & Brooks, for the state. Co. v. State, supra. It may be said, however, that these several paragraphs, and likewise JORDAN, C. J. This action was comthe fifth paragraph of answer, constitute menced in the Lawrence circuit court by the nothing more than an argumentative denial state of Indiana, through the proper proseand the facts therein alleged, so far as com- cuting attorney, to recover the penalty propetent, were admissible under the general

vided by section 4 of an act of the Legisladenial which constituted the first paragraph ture, approved March 7, 1901 (Acts 1901, of the answer. The Jeffersonville Water Sup- p. 149; Burns' Ann. St. 1901, $$ 3312b and ply Co. v. Ritter, 146 Ind. 521, 45 N. E. 697; 3312f). The cause was venued to the MonIndiana, etc., Gas and Oil Co. v. O'Brien, 160 roc circuit court, wherein, upon the issues Ind. 266, 279, 65 N. E. 918, 66 N. E. 742. joined, it was tried by the court. There was

The ruling of the court, therefore, in sus- a special finding of facts and a recovery of taining the demurrer thereto, even if erro- $500 was awarded the state. Upon the speneous, under the circumstances was harmless. cial finding, the court stated its conclusions Counsel for appellant argue that the fifth of law in favor of the state (appellee herein), paragraph of answer presents the defense to which appellant duly reserved its excepthat appellee could not secure injunctive re- tions. Judgment was rendered upon the findlief at common law. This we have conced- ing in favor of the state and against the aped, but, as previously stated, the action is pellant in the sum of $500, together with based upon the statute in question and not costs. upon the common law. There was no error The action appears to be based on the fact in denying the motion to modify the decree. that appellant company had violated the proThe latter is in harmony with the finding visions of section 1 of said statute by refus. of the court, and it fully conforms to the ing to accept from the Southern Indiana' Ex

press Company, an express company doing 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 complaint 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 sustained, 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 admissible 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.

3. SAME-CONTRACT-RESCISSION.

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 bad 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, 8 45.] 4. SAME-CONTRACT-PERFORMANCE.

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, 8 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., 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. BBOKERS-COMMISSIONS-CONTRACTS INTER SE-STATUTES-APPLICATION.

Burns' Ann. St. 1901, 8 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 bad 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.

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 de murrer 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 de murrer 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 400- M. L. Galbreath." That this letter was acre farm, known as the “Nancy De Vault received by appellee, who at once undertook Farm.” That appellee is a resident of the to procure and send to appellant a purchaser town of Watseka, ill., and by occupation is for said farm, and, in order the better to a real estate dealer, and, having learned that describe the same to prospective purchasers, appellant had said farm for sale, wrote and came to Whitley county, Ind., and personally sent the following letter: "Watseka, Ill., inspected the land. That among the persons June 12, 1902. Mr. M. L. Galbreath, Colum- seen by appellee in regard to purchasing the bia City, Ind.-Dear Sir: I understand you farm was one A. M. Culver, residing at the have a farm of 400 acres near Collins Sta- town of Sheldon, Ill., who, about 10 days tion, Indiana, at $37.50. If so, and there were thereafter, came to Whitley county to look the customary $1.00 per acre for me, I may at said farm, and upon his arrival at Columbe able to get you a buyer. I would not buy bia City went to the office of appellant and it myself as I have already bought a half introduced himself to the general manager as section just north of Collins for much less a man sent by appellee to look at the De per acre. Write me best price and terms, Vault farm. That appellant's general manalso add $1.00 per acre for my commission if ager took Culver to see the farm, and offered you wish me to get you a buyer. Truly the same to him at $35 per acre without the yours, John S. Darrough." That said letter

crops, and at $37 or $37.50 per acre with the was duly received, and, on the 14th day of crops, but Culver declined to pay the price June, 1902, appellant wrote and sent to appel- | asked, and offered $30 per acre, but no sale lee the following letter: "Columbia City, was closed. That on July 27, 1902, appellee Ind., June 14, 1902. Mr. John Darrough, wrote appellant as follows: "July 27th, 1902, Watseka, Ill.Dear Sir: We herewith en- Mr. M. L. Galbreath, Columbia City, Ind.close rough sketch of the farm in question, Dear Sir: As I came home I stopped off at which will give you a good idea of its loca- Sheldon and had a talk with Mr. Culver. tion with reference to your farm in the same He said he liked the farm fairly well but locality. We think this farm is a good bar- it has lots of hard work to be done, and he gain at the nominal figure of $37.50 per acre. said you wanted 6 per cent. on loan on deAt this price we would let the crops now ferred payments. A straight 5 per cent. 5growing on the farm go with it, provided the year loan commands a premium here, so I deal can be made before we have to look wish you would either make the terms oneafter the harvesting. There are nearly thirty half cash and 5 per cent. on deferred payacres of good wheat, twenty-five acres of corn ments or one-half cash and you make the planted, and quite a lot of oats. There will loan at 5 per cent. at 5 years. It would help be over fifty tons of hay to be made. The the chances of sale very much. Hoping we wheat and oats are to be threshed and put may be able to sell the farm, I am truly in barn (landlord's share is one-half), the yours, John S. Darrough.” This letter was hay is to be made and put in barn but the duly received, and on August 1, 1902, apcorn is to be cut and shocked and the same pellant, by its said general manager, replied is to be divided half and half on the ground. as follows: "Mr. John S. Darrough, Watseka. There are three barns, two good houses, and Ill.-Dear Sir: Mr. Culver spent two days a poor tenant house, a fine hog house and here this week and we made a thorough ex. plenty of corn crib room, good water. In amination of the big farm, and the truth is fact it is a fine farm and will bear close in- that he likes the farm very well but thinks spection. There is some rough land on it there is too much work to be done for one so and about 16 or 18 acres of muck of the old as he, and for that reason we have no same kind which your farm has, well watered hopes of making a sale to him. Besides this, and located in a fine neighborhood near good some of the heirs are of the opinion that we school and churches. The enclosed diagram .

have quoted the land too low and that it will show the roads and the exact descrip- must net them $35.00. This is the price at tion of the farm, with its relative position which we quoted the land to Mr. Culver, and to the roads. The railroad barely touches we will be compelled to make it net the heirs it, making less than eight rods frontage on that amount. If you still desire to assist the road. We will give a perfect merchant- us in the sale and think you can make it able title as shown by an abstract of the go at enough over $35.00 to pay you for your same, warranty deed, and will pay all taxes trouble, you are at liberty to proceed, but if payable and collectible in the year 1902. we will have to allow a commission on the While it seems to us a liberal commission bill at the nominal figure of $35.00, we will at $1.00 an acre, we will allow it in order to be compelled to revoke all former arrangeclose the deal. We will pay the expenses ments on this tract. We will divide with of livery hire in the examination of the land you on all other lands. We are respectfully for all customers that you may bring or yours, M. L. Galbreath." That about Ausend to us. Trusting that you may find it gust 1, 1902, Culver again came and examined to your interest to push the matter along the farm, but did not buy, and, on October as speedily as possible, we remain respectful- 1, 1902, appellant's said general manager ty yours, Provident Trust Co. Countersigned: | wrote inviting him to come to Whitley county, and examine other lands which appellant had tract, or dispute as to its provisions. In an for sale, and, in response to the invitation, action for commissions against the owner Culver came and examined other lands, but of real estate sold, a substantial compliance was not pleased, and requested another ex- with the terms of the statute will be required. amination of the De Vault farm. After again Zimmerman v. Zehendner, 164 Ind. 466,73 looking the land over, and before returning, N. E. 920; Beahler v. Clark, 32 Ind. App. he bought the farm at $35 per acre without 222, 68 N. E. 613. The operation of the statthe crops, and has paid the purchase price ute will not be extended further than necin accordance with the terms of the purchase. essary to make its spirit and purpose effectThat after such sale to Culver, on or about ive. The owner of the real estate is not inOctober 10, 1902, appellee demanded of ap- volved in this controversy and the contract pellant the sum of $400, as his commission sued upon is not tainted with illegality unless for securing and sending a puchaser for wholly condemned by the statute quoted. said farm, but appellant refused payment, We can conceive of no reason why such a and has not paid the same, and, on October contract in writing should be outlawed by 15, 1902, appellant, by its general manager legislative fiat, and in our opinion the Legiswrote appellee the following letter: "Colum- lature did not intend by this enactment to bia City, Ind., Oct. 15th, 1902. Mr. John Dar- provide a way for one party to repudiate rough, Watseka, Ill.-Dear Sir: From the his covenants in writing after receiving the contents of your favor of the 14th instant, stipulated consideration from the other. The we infer that you must refer to my letter ad- object of the law was, not to denounce as dressed to you on June 14th, but in order invalid contracts in writing which were althat you may be set right it will be necessary ways and everywhere valid before, but only to again read our communication bearing to require the substitution of written for date of August 1st, wherein we revoke all parol agreements in order to bind owners former arrangements concerning the sale of of real estate for the payment of commisthe land in question. Trusting that your sions on sales. The written contract in suit sense of honor will direct you aright in this being properly executed by appellant is not matter, we remain respectfully yours, M. L.

in conflict with the statute under consideraGalbreath.” That Culver was procured to tion, but is valid and enforceable. We accome and examine the farm wholly through cordingly hold that the court did not err in the efforts of appellee, and no one else had overruling appellant's demurrer to the comanything to do in opening negotiations with plaint, or in sustaining appellee's demurrer him for the purchase of the land, and that to the third paragraph of answer, or in statappellee was the efficient cause in securing ing the second and third conclusions of law. a purchaser for, and consummating a sale of,

The second paragraph of answer, as consaid farm. Upon these facts the court stat- strued by appellant's counsel, was a plea of ed, as conclusions of law, that there had been estoppel. It is insisted that appellee was no rescission of the contract, and that ap- silent when he should have spoken, and that pellee was entitled to recover of appellant appellant was thereby misled. A fatal dethe sum of $400, with costs of suit.

fect in the pleading, as we view it, is that The point chiefly relied upon by appel- appellant at all times had equal and full lant for a reversal of the judgment is that knowledge of appellee's right to compensathe contract sued upon was not alleged or tion, and was not warranted in assuming shown to have been signed by the owner of from appellee's mere silence that he had rethe real estate or his legally appointed and linquished his interest in a sale of the farm duly qualified representative. The statute to Culver. It is clearly shown that the conupon which this contention is founded reads tract to sell was a continuing one, and the as follows: "That no contract for the pay- price was fixed at $37.30 per acre including ment of any sum of money or thing of value the crops, if sold before harvest. Appellee as and for a commission or reward for the found and furnished the purchaser, and apfinding or procuring by one person of a pur- pellant voluntarily quoted the price at $35 chaser for the real estate of another shall per acre without the crops. We are unable be valid unless the same shall be in writing, to say, from the facts pleaded, that appelsigned by the owner of such real estate or his lant was injured by the change in the terms legally appointed and duly qualified represen- of the sale, and are of opinion that the antative." Section 6629a, Burns' Ann. St, 1901. swer was insufficient, and appellee's demurThe manifest purpose of the statute was to rer thereto was correctly sustained. protect owners of real estate against doubtful The fourth paragraph of answer in an and conflicting claims for services as alleged argumentative way attempts to plead a revagents in connection with real estate sales. ocation of the agreement sued upon by apIt is within our judicial knowledge that pellee. We are unable to concur in the connumerous controversies and lawsuits arose clusions of the pleader. A proper construcfrom such claims. These contracts are now tion of the letters exhibited will not susrequired to be in writing, signed by the owner tain the fact alleged that the contract beor his duly authorized agent, so that there tween appellant and appellee was rescinded may be no doubt of the existence of the con- and it is a familiar principle that the sub

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