Evans v. Randall

VICKERY, P. J.

Epitomized Opinion

This was an action by Mrs. Evans, a real estate agent, to recover a commission. Plaintiff claimed that she had a contract with defendants whereby she was to find a purchaser for their property and was to have as her commission all money she obtained in excess of $8600.00. The defendants sold the property direct to one of the plaintiff’s prospective buyers. -The plaintiff sued on the contract and in quantum meruit claiming that she had been the procuring cause of selling the property of the defendants. As a demurrer to the petition was sustained, an amended petition was filed setting forth an action in quantum meruit only. Upon a motion filed by the defendants the pleading was stricken from the file as a sham pleading, without any evidence being submitted. Proceedings in' error were ijhen prosecuted by plaintiff. In 4-eversing (The judgment the Court of Appeals held:

1. Where there is no conflict upon a material point and the entire evidence leaves no reasonable doube that a pleading is a sham pleading and is made only for the purposes of delay or otherwise, it should be stricken from the files.

2. Where no evidence is introduced to disclose the character of a pleading, and the pleading is good as against demurrer, it is error for a court to strike the pleading from the file as being a sham pleading.

3. Where the facts show that the plaintiff was the procuring cause of getting the customer to whom the property was later sold by the defendants themselves, the former' should be entitled to recover a reasonable commission for the sale of this property, and may enforce this right in quantum meruit.