Thackaberry v. Wilson ( 1911 )

Root, J.

The plaintiff contends that a cross-demand in justice court, where this action was commenced, does not state facts sufficient to sustain the judgment in the defendant’s favor. The demand is as follows: “The defendant further alleges that there is due him from the plaintiff on account of services rendered by defendant to plaintiff in the sale of plaintiff’s real estate. That plaintiff agreed to pay the defendant the reasonable value of said services which was $180, no part of which has been paid. Said services were rendered during the years 1903, 1904, and 1905. Defendant prays judgment for $180, interest and costs.”

No request was made to require the defendant to make his demand more definite and certain, nor does the record disclose that the contract is oral. Sufficient appears from the pleading to warn the plaintiff that he was being sued for compensation demanded by the defendant for bringing about a sale of the plaintiffs property. Section 74, ch. 73, Comp. St. 1911, requires that such contracts shall be in writing, subscribed by the landowner and the broker, and shall describe both the land and the compensation to be paid the agent. In Schmid v. Schmid, 37 Neb. 629, we held that “A petition alleging an agreement within the statute of frauds, but not alleging that such agreement was in writing, is sufficient after judgment.” We think the rule should apply to the instant case. The contract may be in writing and comply with every requirement of the statute; the record'does not otherwise disclose, and we should not presume that the justice of the peace would have rendered judgment upon an oral contract.

The argument that the services were rendered in Chicago and no liability attached thereby because of the defendant’s failure to comply with alleged ordinances of that city is immaterial in the state of the record.

There is no error in the record, and the judgment of the district court is

Affirmed.