Slocum v. Smith , 195 Mich. 281 ( 1917 )

Bird, J.

The plaintiff is a real estate broker who deals exclusively in farm lands. He claims that in February, 1915, he purchased a farm known as the Rood farm near Romeo, consisting of 276 acres, for defendant, at his request, but that after he had arranged the terms of the purchase and the purchase had been consummated, defendant refused to pay him his commission. Defendant denies that plaintiff acted for him, and takes the position- that he supposed plaintiff was representing Mr. Rood, the vendor. Being unable to adjust their differences, plaintiff brought this suit, and recovered a judgment of $250.

1. Defendant insists that even if there were such an agreement as plaintiff claims, it is of no-'force because it was oral and within the prohibition of Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), which makes such agreements void unless in writing. Plaintiff meets this point by asserting that the agreement is not within the statute because it was an agreement to purchase real estate, and not one to sell real estate. The amendment of the statute of frauds referred to reads:

_ “Sec. 2. In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some_ person by him thereunto lawfully authorized, that is to say: :i: * * 5. Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate.”

We think plaintiff’s construction of the statute is much too narrow. While it is true, as counsel say, that a purchase is not a sale nor a sale a purchase, it is /equally true that there cannot be a purchase without a sale, nor a sale without a purchase. The history of the reasons leading up to this legislation is- persuasive that the law was. intended to apply to an agreement for a purchase as well as a sale because one is a necessary complement of the other. .Both are clearly within the mischief which was intended to be remedied by the legislature, and we .think a reasonable and liberal construction of the statute will make it apply to an agreement for a purchase as well as to a sale of real estate.

2. But it is contended that if we should so hold, the judgment ought not to be disturbed because a recovery was had upon the' quantum meruit for services actually performed, and upon proof of their, value. This contention is in accordance with the rule heretofore followed by this court until the case of Paul v. Graham, 193 Mich. 447 (160 N. W. 616). A different rule was therein announced in construing this amendment to the statute of frauds, and one which is opposed to counsel’s contention. The judgment must be reversed, with costs to the defendant.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, Brooke, and Fellows, JJ., concurred.