Pierce v. Domon

Letton, J.

Action by a real estate agent to recover a commission for the sale of land due him under the terms of a written contract. The answer was a general denial, with a a plea that defendant signed the written contract in ignorance of its contents. The jury found for plaintiff, and defendant appeals.

The testimony on behalf of plaintiff tends to prove that the defendant, in a conversation with him at her home, employed him as her agent to sell 70 acres of land; that on the same day he tried to make a sale of the land to one Steinwart, who did not then buy, but who a short time afterwards completed negotiations with the defendant herself. After they had reached an agreement, but before any papers were executed, plaintiff procured defendant to execute the written contract on the same terms as the oral one had been entered into. Defendant afterwards refused to comply with its terms and pay the stipulated commission.

The defendant denies that any oral agreement was entered into, and says that she signed the written contract under a misconception of its contents; that it was not read to her, and she could not read it on account of not having her glasses with her. But it was signed at the office of her attorney in the presence of one of her granddaughters and husband, and after it had been read and an amendment made by her counsel, who testified that Mrs. Domon came to his office before plaintiff and talked to him about it.

The jury evidently believed the plaintiff’s witnesses and found accordingly. There were only two material facts in dispute: (1) Whether plaintiff was ever employed to sell the land; (2) whether Mrs. Domon signed the written contract with knowledge of its contents. As to both of these questions the evidence supports the verdict.

It is difficult to tell what errors are relied upon for reversal, since the brief of defendant is not prepared in accordance with rule 12. The work of this court is expedited by an adherence to this rule, and the court may refuse to consider briefs not prepared in accordance therewith. But the brief and the record in this case are short, and will be considered as if the rule had been observed. It is said that, if the verdict is not supported by the evidence with respect to the oral contract, there is no evidence to support it, and it is argued that, if the appellant made the verbal contract, then she knowingly made the written one, but that, if she did not make the verbal contract and had never employed plaintiff to sell her land, then she would not knowingly enter into the written agreement. The conclusion is drawn that the whole case rests solely upon the oral testimony, and that this is inadmissible under the statute. The answer admits the execution of the written instrument, but denies that defendant. knew she was signing a contract for the sale of land and to pay a commission. The evidence was admissible as tending to show that she executed the instrument with knowledge of its contents. The introduction of evidence did not follow the logical order, bfit this was not prejudicial, and does not seem to have been complained of at the trial.

The trial court instructed the jury, in substance, that the oral evidence was admitted only for its bearing upon the question of a consideration for the alleged written contract; that such a contract is unenforceable unless reduced to writing, but that a verbal contract of this nature is not contrary to public policy, and the parties may carry it out if they wish, and in case it is reduced to writing-before suit is brought the object of the statute is fulfilled, and the written contract becomes admissible in evidence and may be enforced in a proper proceeding. This states the law correctly. Sheehy v. Fulton, 38 Neb. 691. We have said that the act of 1897 which requires a contract of this nature to be in writing is virtually an extension and enlargement of the statute of frauds, and that its object is to prevent an obligation or liability from being imposed upon a defendant by false testimony. Baker v. Gillan, 68 Neb. 368; Covey v. Henry, 71 Neb. 118. We have also held that where a defendant, after receiving the benefit of such services, executes a written promissory note in payment thereof, the reason of the law is fulfilled, because his contract is established by his own signature. Mohr v. Rickgauer, 82 Neb. 398. And so in this case, unless the defendant had signed the written instrument, plaintiff would not have been in possession of legal evidence with which to prove the existence of the contract; but, having furnished by her own act the legal evidence necessary, she placed plaintiff in a position to enforce the remedy.

On the whole case, we are satisfied that the contract was sufficiently proved by the written instrument, and that the defendant would not have signed the same if she or her attorney had not been advised of the contents of the paper. We have found no error to the prejudice of defendant either in the reception of evidence or in the instructions to the jury.

The judgment of the district court is

Affirmed.

Barnes, Fawcett and Hamer, JJ., not sitting.