gate the question to be presented by this pro- Appeal from Circuit Court, Howard Counceeding the sheriff was a necessary party ty; William C. Purdum, Judge. defendant. reached. Action by the Western Brass Manufactur Overton & Joyce, of Kokomo, for appellant. Blacklidge, Wolf & Barnes, of Kokomo, for appellee. IBACH, C. J. This is an action to recover a balance of $269.78 claimed to be due appellant for brass rails and foot rests sold to appellee. The first paragraph of the answer is a general denial; the second, a plea of [3] As to the dissolution of marriage it-ing Company against the Haynes Automobile self the parties are not free to enter into Company. From a judgment for plaintiff, it agreements that tend to promote or facilitate appeals. Affirmed. the same (9 R. C. L. 256); as the state and society have such an interest in the institution of marriage as that the law steps in and holds the parties to various obligations and liabilities. As to whether the provisions of the statute requiring installments of alimony, when time is given for the payment, to be secured, falls within this general principle as tending to promote or facilitate a dissolution, so that the same cannot we waived by the parties, and as to whether the sher-payment. The third is based on an alleged agreement to furnish appellee such rails as iff of Hancock county was a necessary party were fitted for use in the automobiles which defendant to the proceedings, we need not it manufactured and a failure to perform. decide, in view of the conclusions we have It is also averred in this paragraph that many of the rails furnished were returned, leaving a balance due of $42.52, which sum was tendered to appellant before suit. The fourth is designated a counterclaim for damages, in which it is averred that the rails delivered were not as ordered, and damages resulted therefrom. The fifth alleges that there was an implied warranty in the sale of the articles furnished that they would be reasonably suited for appellee's special use, but they were not, and were returned except to the amount of $42.52. Issues were joined by a reply of general denial to each paragraph of answer except the first. Before the trial there had been an offer to confess judgment for the amount not in dispute. There was a verdict and judgment for appellant for $42.52 and costs to the time the offer to confess judgment was made. The errors assigned arise on the overruling of appellant's motion for a new trial. The record discloses no error calling for a reversal of the judgment. Judgment affirmed. (61 Ind. App. 524) WESTERN BRASS MFG. CO. v. HAYNES 1. APPEAL AND ERROR CASE BELOW. 171(1)-THEORY OF In an action to recover a balance for goods sold, where both parties tried the case on the theory that defendant's claim of an implied warranty was good in law, the Appellate Court will not allow plaintiff to change its position and uphold the contention that the cause should be reversed because the written warranty as to the quality of the material used in the articles purchased alone is involved in the case and controls the rights of the parties. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1055; Dec. Dig. 171(1).] 2. SALES441(4)-BREACH OF WARRANTYSUFFICIENCY OF EVIDENCE. Appellant asserts that the clause in the written contract, "above material to be A-1 in all particulars," related only to the quality of the materials used in the manufacture of the articles embraced in the contract, and In an action, by the seller of brass railing for use in automobiles, to recover a balance, evidence as to a breach of an implied warranty held sufficient to support verdiet for plaintiff did not include fitness for any particular only for the amount which defendant admitted it owed. 1068(4)-HARMLESS ERROR-INSTRUCTIONS ON DAMAGES. use. Preliminary to referring to the evidence, it is proper to state that each special answer and the pleading termed counterclaim proceeded upon the theory that the written warranty covered the reasonable fitness and suitability of the rails purchased for the uses intended. The fifth paragraph set up an implied warranty of fitness for use, and a violation of such warranty. No demurrer was filed to any of these pleadings. Evidence was introduced by appellee to support the theories expressed in the pleadings, without objection. In an action for a balance due for goods sold, where no damages were allowed defendant [1] It is clear from the entire record that on its cross-complaint, error in instructions on the trial proceeded upon the theory that thé the question of damages claimed by defendant question of an implied warranty was proptherein was harmless as to plaintiff. [Ed. Note.-For other cases, see Appeal and erly in the case, and two of appellant's inError, Cent. Dig. § 4228; Dec. Dig.structions were drawn upon that theory. 1068(4).] This fact is also made apparent because ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes pellant did not request a single instruction on the proposition that the written contract contained but a single warranty. Since both parties tried the case on the theory that appellee's warranties were good in law, this court will not now permit appellant to change its position and uphold the contention that the cause should be reversed for the reason that the written warranty as to the quality of the materials used in the articles pur chased alone is involved in the case and controls the rights of the parties. Terre Haute, etc., R. Co. v. Crawford, 100 Ind. 550, 553, 554; Wilson v. Record, 45 Ind. App. 371, 374, 90 N. E. 906. It is conceded that the contract in question was made by the McCullough Motor Supply Company on behalf of appellant. The evidence shows that Mr. McCullough made the contract and at the time was informed that the brass rails purchased were to be manufactured for appellee to be used by it in the equipment of its motor cars. There is evidence which shows that both the foot rails and robe rails were inferior and not substantial. Quoting from the evidence: "A man taking hold of them in pulling himself up into the car, which is natural, they would break and bend out of shape, and the weight of a foot would bend the foot rails out of shape." [2] On the following day, appellee wrote another letter to appellant requesting a change of materials, but in the meantime appellant continued to furnish the same rails, and then wrote to appellee that it had filled the order unless additional rails were needed. The evidence shows that the last shipment was made five days after the letter was written to appellant notifying it that the rails furnished were not fitted for the use intend ed, and that other rails would have to be furnished. There is much other evidence from which it could reasonably be inferred that appellant was furnishing imperfect and unsuitable rails. The evidence also shows that an offer was made by appellee to return the defective rails then in its possession. Although there is some evidence produced by appellant in conflict with that produced by appellee, there is ample evidence to support the verdict. Witness Lejuste, who represented appellee Many objections are urged to the instrucin the transaction, testified, among other tions given by the court and to the action of things, that he had represented the Apperson the court in refusing some of those requested Bros. Company in this same capacity when by appellant; but it is not necessary to dispurchasing brass rails to be used in autocuss each objection separately. It is to be mobiles manufactured by that company; but observed that appellee did not request any these goods were not as good as he had pre-instructions interpreting the written contract, viously purchased for that company, al- and it may be stated that all the objections though he believed that he was purchasing urged to the instructions given hinge on the the same class of goods. The following let-proposition contained in them which had to ter written by appellee to appellant formed a part of the evidence: "Replying to your letter of the 22d will say that it is true we specified lock joint robe and foot rails. but these rails are not as good as you furnished the Apperson Bros. Automobile Co. There must be something different as far as tubing is concerned. The writer is not positive of the fact, but thinks the tubing is of a lighter gauge." It was admitted by appellant that the ma terials sold were not suitable for rails more than 33 inches long, and were not generally do with implied warranties, when goods are sold to be fit and suitable for a particular use. It was upon the theory that there was an implied warranty that the issues were drawn, and the case tried; consequently, the instructions given upon that theory were within the issues and proper. [3, 4] If appellant desired an instruction which placed a construction upon the written contract, he should have requested it. But it seems apparent that, when the case was tried, no construction other than that placed on it by the parties themselves was contended for. It is not necessary to discuss the instructions given upon the question of the damages claimed by appellee in its crosscomplaint, because, if incorrect, no harm damages were allowed appellee on this branch came to appellant on account thereof, as no of the case. (61 Ind. App. 535) LUTHER v. BASH et al. (No. 9031.) (Appellate Court of Indiana, Division No. 2. April 6, 1916.) 1. FRAUDS, STATUTE OF 103(1)-REQUIRE MENT OF WRITING-COMPLIANCE. A contract required by law to be in writing nust be wholly so in order to be enforceable as a written contract; if partly by parol, it is a parol contract. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 192; Dec. Dig. 103(1).] 2. BROKERS 43(2)-REAL ESTATE BROKERS -WRITTEN CONTRACT TO PAY COMMISSIONBURDEN OF PROOF-STATUTE. In actions by real estate brokers for a commission, the brokers, seeking the collection of commission for services rendered against the owner of real estate disposed of, must show a substantial compliance with the statute, Burns' Ann. St. 1908, § 7463, requiring the contract to pay for services to be in writing, in order to recover. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 44; Dec. Dig. 43(2).] 3. CONTRACTS 168-MATTER IMPLIED. Whatever may be fairly implied from the terms or nature of an instrument is in legal contemplation contained therein, so that what is implied in an express contract is as much a part of it as what is expressed. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 751; Dec. Dig. 168.] 4. BROKERS 43(2)—REAL ESTATE BROKERS -RIGHT TO COMMISSION-STATUTE. Under Burns' Ann. St. 1908, § 7463, providing that no contract for the payment of any money as commission for the procuring by one person of a purchaser for the realty of another shall be valid unless in writing and signed by the owner or his agent, where the owner of a farm signed an agreement to pay brokers 2 per cent. of cash or property received in trade for it, if sold, such owner was liable to the brokers, who procured a purchaser, the owner refusing to sell after acceptance of her terms by the prospective purchaser, although the exact amount of the brokers' commission could not be ascertained from their contract with the owner, since parol evidence showing the exact amount of the commission to which the brokers were entitled was only explanatory to aid the court in applying the written instrument to the subject-matter, but did not supply any essential part of the contract. [Ed. Note. For other cases, see Brokers, Cent. Dig. § 44; Dec. Dig. 43(2).] Appeal from Circuit Court, Henry County; John F. La Follette, Judge. Action by William E. Bash and another against Sarah Poole Luther. From a judg ment for plaintiffs, defendant appeals. Af firmed. Bundy & Jones, of New Castle, for appellant. Clarence Brown, of New Castle, and John O. Spahr, of Indianapolis, for appellees. MORAN, J. Appellees recovered a judgment for $430 against appellant upon a broker's contract for commission alleged to be due for services rendered in disposing or attempting to dispose of appellant's farm in Jackson county, Ind. The question presented upon the sufficiency of the complaint to withstand a demurrer is likewise presented The special finding of facts, in substance, discloses: That appellees were engaged in the brokerage business in the city of Indianapolis, and entered into a contract with appellant to dispose of a farm of 360 acres located near Crothersville, Jackson county, Ind., and known as the "Vernon" farm, under the terms of the following agreement: "Indianapolis, Ind., March 24, 1910. "Bash & Bash, Indianapolis, Indiana-Gentlemen: You are hereby authorized to undertake the sale of my farm of 360 acres located near Crothersville, Indiana, and if sold or traded to any one procured through you for any price or consideration satisfactory to me in either cash or other property in trade, I agree to pay you the customary commission of two per cent. thereon. "[Signed] Sarah Peele." That, acting under the foregoing agreement, appellees procured one T. A. White to examine the farm, who was desirous of exchanging Indianapolis property therefor. That on March 15, 1910, T. A. White examined the "Vernon" farm, and on March 24, 1910, appellant examined the White property in the city of Indianapolis. That the amount of the incumbrances, the value of the properties, the terms and conditions of the trade, were discussed by the parties respectively, and on April 5, 1910, appellant made a written offer to T. A. White for the trade of her farm for his Indianapolis real estate as follows: "Crothersville, Ind., April 5, 1910. "T. A. White: I hereby offer to trade my equity in the farm known as the 'Vernon' farm and T. A. White, to pay me $1,000.00 in money for his property corner New Jersey street and East 22nd street and 58, 60, 62 and 64 Cornell avenue, Indianapolis, Indiana, for the equity. "[Signed] Sarah Peele." That on April 6, 1910, the foregoing written offer was received by appeilees Bash & Bash, and through them, on April 10, 1910, T. A. White accepted appellant's offer in writing by writing at the bottom thereof: "Accepted if closed by May 5, 1910. T. A. White." And on April 12, 1910, appellee William E. Bash mailed through the United States mail a copy of said acceptance to appellant, which was received by her in the due course of mail, and at the time of the acceptance T. A. White was ready and willing to consummate the trade and exchange of properties and ready and willing to close the deal, but appellant refused to carry out the terms of the offer, and the trade was never completed. The value of appellant's farm was $21,500, and the value of T. A. White's property was $20,000. That Sarah Peele intermarried with one W. J. B. Luther after the signing of the contract. The conclusions of law rendered on the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes facts found were that the law was with appellees and that they were entitled to recover $430 from appellant. [1-4] It is appellant's position that the essential elements of a written contract, as required by statute, are wanting in this cause, in that parol evidence must be resorted to in order to determine the amount of commission appellees are entitled to recover, if any. The statute here under consideration provides: "No contracts for the payment of any sum of money, or thing of value, as and for a commission or reward for the finding or procuring, by one person, of a purchaser for the real estate of another shall be valid, unless the same shall be in writing, signed by the owner of such real estate or his legally appointed and duly qualified representative." Burns' R. S. 1908, § 7463. The contract in the case at bar, as we have seen, provides that appellees were to receive a commission of 2 per cent. for the services to be performed by them in disposing of appellant's real estate in the manner provided. When the language in reference to the 2 per cent. is read in connection with all the language employed in the drafting of the contract, and in the light of the subject-matter, it can be fairly inferred that the 2 per cent. was to be calculated upon the amount appellant was to receive for the real estate. Whatever may be fairly implied from the terms or nature of an instrument is, in the judgment of law, contained in the instrument. 6 R. C. L. 856. In other words, what is implied in an express contract is as much a part of the contract as what is expressed. Delaware & Hudson Canal Co. v. Penna. Coal Co., 8 Wall. 276, 19 L. Ed. 349; Jordan v. Indianapolis Water Co., 159 Ind. 337, 64 N. E. 680. Thus the only element omitted from the contract in the light of the foregoing authorities is the given amount upon which the 2 per cent. was to be calculated. At the time As a general proposition, it can be stated that a contract required by law to be in writing must be wholly so in order to be enforceable as a written contract; that a contract partly in writing and partly in parol is a parol contract, and does not satisfy a statute which calls for a written contract as here under consideration. Zimmerman v. Zehender, 164 Ind. 466, 73 N. E. 920, 3 Ann. | of entering into the contract, the price the Cas. 655; Porter v. Patterson, 42 Ind. App. 404, 85 N. E. 797; Selvage v. Talbott, 175 ind. 648, 95 N. E. 114, 33 L. R. A. (N. S.) 973, Ann. Cas. 1913C, 724; Waddle v. Smith, 58 Ind. App. 587, 108 N. E. 537. The immediate infirmity urged by appellant as to the contract under consideration is that the language, "I agree to pay you the customary two per cent. thereon," furnishes no basis upon which to calculate the amount of commission due appellee, if any. In actions of the class to which the one at bar belongs, the party seeking the collection of commission for services rendered against the owner of real estate disposed of must show a substantial compliance with the statute requiring the contract to be in writing in order to recover. Morton v. Gaffield, 51 Ind. App. 28, 98 N. E. 1007; Price v. Walker, 43 Ind. App. 519, 88 N. E. 78; Provident Trust Co. v. Darrough, 168 Ind. 29, 78 N. E. 1030. It has been held that the manifest purpose of the statute under consideration is to protect owners of real estate against the imposition and fraud of real estate agents in attempting to collect for services alleged to be performed in the disposition and sale of real estate where the claim was of doubtful character, but that the statute was not intended to enable the landowner to commit fraud or imposition upon the agent; and that the statute must be substantially complied with; but that the operation of the statute should not be extended further than necessary to make its spirit and purpose effective. Selvage v. Talbott, supra; 'Doney v. Laughlin, 50 Ind. App. 38, 94 N. E. 1027; Zimmerman v. Zehender, supra; Beahler v. Clark, 32 Ind. App. 222, 68 N. E 613. farm was to be sold for was not, as disclosed by the contract, agreed upon; but it was provided that if appellees sold or traded appellant's farm for a price or consideration satisfactory to her, either in cash or in the exchange of other property, appellees were to receive a commission of 2 per cent. therefor. After entering into the contract, appellant, through the efforts of appellees, addressed a written proposition to one T. A. White, expressing her desire to exchange her farm listed with appellees for his Indianapolis property providing he paid her a difference of $1,000. This proposition was accepted by T. A. White in writing, and thus there was a meeting of the minds of the parties as to the properties to be exchanged and the payment of the difference by T. A. White. The trial court permitted parol testimony to be resorted to for the purpose of establishing what appellant was to receive for her farm, which, as is disclosed, was $21,500, and upon this amount the 2 per cent. was computed by the trial court. Now, if an essential part of the contract was supplied by parol evidence resorted to, then appellees must fail, as the contract must be regarded as a parol contract and in derogation to the statute, which requires contracts of this character to be in writing. The parol evidence resorted to brought to the court the amount appellant was to receive for her farm, but did not vary the terms of the written instrument entered into authorizing appellees to procure a purchaser for her farm, nor did it vary the terms of the written proposal by appellant and the acceptance by T. A. White. If the evidence thus admitted went to the form and not to the substance of the written in the parties knowingly, mutually agreed in adIf from the whole contract it appears that vance on a definite amount to be paid by the one defaulting to the other in case of a breach In Morton v. Gaffield, supra, the contract or repudiation of it, such agreement will conunder consideration read: trol, unless it is inconsistent with other provi sions thereof, or is unreasonable or unconscionable in view of the probable damages that may result from the breach. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 179-181, 183-187; Dec. Dig. 85.] 3. DAMAGES 78(1)-LIQUIDATED OR PENALTY-WORDS USED. Relative to a stipulation of a contract being one for liquidated damages or a penalty, the use of particular words or phrases, such as damages, penalty, forfeit, liquidated damages, and the like, is not conclusive, but they are to be duly considered in determining the question. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 158, 159; Dec. Dig. 78(1).] 4. DAMAGES 79(1) LIQUIDATED EN FORCEMENT. If the parties to a contract have deemed it difficult to determine the actual damages in case of a breach, or for some other reason satisfactory to them and mutually understood at the time, have deemed it advisable to agree on have advisedly so stipulated in the contract, a sum, in advance, as liquidated damages, and such stipulation will be respected and enforced. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 164; Dec. Dig. ~79(1).] In addition to the minds of the parties meeting upon the express stipulations of the instruments, their minds also met as to the real basis upon which the 2 per cent. was to be computed, viz., the consideration appellant was to receive for her property. This was not known either in money or property at the time the contract was entered into and could not be known until appellees' compensation was earned by procuring a purchaser willing, ready, and able to purchase appellant's property at a money considera- 5. DAMAGES 80(1)-LIQUIDATED OR PENtion satisfactory to her or in consideration ALTY-ANY OF SEVERAL ACTS. Where a contract contains provisions for of the exchange of other property satisfac-performance or nonperformance of several acts tory to her. Hence when the negotiations reached this stage in the course of the dealing as it did from the finding of facts, the actual amount upon which to make the computation of 2 per cent. was determined. Now to allow this fact to be supplied by parol proof was not supplying an essential element or ingredient of the written instruments, as nothing was added to the same but to enable the court to properly apply the written instruments to the subject-matter under consideration. No error was committed by the trial court in stating its conclusions of law on the facts specially found. The conclusion thus reached disposes of the questions presented by the of different degrees of importance, and provides for payment of a definite sum on violation of any or all of them, and the sum would in some instances be too large, and in others too small, compensation, the stipulated amount will be regarded as a penalty, and not as liquidated damages. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 170-172; Dec. Dig. 80(1).] 6. DAMAGES 76-LIQUIDATED OR PENALTY -DOUBT. If the contract leaves the question in doubt, the amount stipulated thereby to be paid in case of breach will generally be construed as a penalty, rather than as liquidated damages; there still being a right of recovery for any actual damages. [Ed. Note.-For other cases. see Damages, Cent. Dig. §§ 154, 155; Dec. Dig. 76.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |