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1. In defense to a broker's action for the commission stipulated in his written authority to sell land, the principal alleged, and offered parol evidence to prove, that negotiations with the purchaser were about to fail because the latter could not meet the terms upon which the broker was authorized to sell, when the broker, in order to induce the principal to sell on other terms, orally proposed that, if he would conclude the sale on those terms, he would claim no commissions unless the purchaser performed his contract, and that he consented to the sale upon modified terms in reliance upon that condition. The purchaser refused to perform. Held, error to refuse to receive the offered evidence.

[See note on this question beginning on page 10.]

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Estoppel to take advantage of absence of writing.

2. Equity will not allow the Statute of Frauds to be used as an instrument of fraud, and where a party to a written contract within the statute induces the other to waive some provision thereof upon which he is entitled to insist, and to change his position to his disadvantage with respect thereto, by himself promising to modify it with respect to some provision for his benefit, he will be estopped to claim that such subsequent oral modification is invalid because not in writing.

[See 25 R. C. L. 712.]

Headnotes by DORSEY, C.

17 A.L.R.-1.

Specific performance

erroneous recital of valuation effect.

3. An erroneous recital in an executory contract for the sale of land as to the valuation fixed upon a certain tract in the transaction will not invalidate it for uncertainty or prevent its enforcement, where the ambiguity is explained and the real valuation intended by the parties is disclosed by the other provisions of the contract. Vendor and purchaser - error in valuation of exchange land effect. 4. The vendor in an executory land contract, who covenants to accept the conveyance of a certain tract therein

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described in part payment of the purchase price of his land, will not be heard to say that the contract was void because of an erroneous recital therein of the valuation placed upon

said tract, where it appears that he intended to accept it at its true valuation, notwithstanding the error, and yas not misled or injured thereby. [See 27 R. C. L. 349.]

APPEAL by defendant from a judgment of the District Court for Arthur County (Hobart, J.) in favor of plaintiff in an action brought to recover a broker's commission alleged to have been earned by him. Reversed. The facts are stated in the Commissioner's opinion. Messrs. Beeler, Crosby, & Baskins,

for appellant:

The price of land, the terms of the sale, and what shall be considered as so making the sale as to entitle the broker to his commissions are not required to be specifically stated in the contract, and therefore a verbal contract to vary the terms in these regards is sufficient.

Bradley v. Bower, 5 Neb. (Unof.) 542, 99 N. W. 490.

The parties were at liberty to modify by parol such portions of the contract as the statute does not require should be in writing.

Rank v. Garvey, 66 Neb. 767, 92 N. W. 1025, 99 N. W. 666; Hetzel v. Lyon, 87 Neb. 261, 126 N. W. 997.

Where a contract is within the purview of the Statute of Frauds there must be a consideration for a modification by waiving some of the requirements, or else a new agreement must be executed, but if the terms of the new agreement have been fully carried out, the original obligation is discharged.

Bowman v. Wright, 65 Neb. 661, 91 N. W. 580, 92 N. W. 580; Reynolds v. Burlington & M. R. Co. 11 Neb. 186, 7 N. W. 737; 10 R. C. L. 1035, ¶ 227.

To entitle a broker to a commission where no sale is actually consummated, he must either produce to the owner a customer who is able, ready, and willing to buy on the terms prescribed by the owner, or else take from the customer a binding contract of purchase.

9 C. J. 608, 93; Felthauser v. Greeble, 100 Neb. 652, 160 N. W. 983; Lunney v. Healey, 56 Neb. 313, 44 L.R.A. 593, 76 N. W. 558; Bolton v. Coburn, 78 Neb. 731, 111 N. W. 782.

Wherever the performance of a broker's duties includes the procurement of a written contract in behalf of his employer, the instrument secured must be a correct embodiment of the agreement negotiated, and in

such form as to be capable of enforcement.

4 R. C. L. 307, ¶ 48; Snyder v. Fidler, 125 Iowa, 378, 101 N. W. 130.

The mistake against which a court of equity grants relief is such as either discloses that the minds of the parties never have met, and that there was therefore no contract, or else where the contract was defectively executed so as not to express the real agreement of the parties.

Moore v. Scott, 47 Neb. 346, 66 N. W. 441.

Messrs. George B. Hastings, B. F. Hastings, and P. W. Scott, for appellee:

Where a real-estate broker em'ployed for a commission presents to the principal a proposed purchaser, it is for the principal to decide whether the person is acceptable; and if, without fraud or concealment or other improper practice, he enters into a binding and enforceable contract for the sale of the land, the broker has earned his commission and the seller should not be permitted to say that the broker has not complied with the terms of his agreement.

Felthauser v. Greeble, 100 Neb. 652, 160 N. W. 983; Scully v. Williamson, 26 Okla. 19, 27 L.R.A. (N.S.) 1089, 108 Pac. 395, Ann. Cas. 1912A, 1265; Lincoln Realty Co. v. Garden City Land & Immigration Co. 94 Neb. 346, 143 N. W. 230, Ann. Cas. 1914D, 392; 4 R. C. L. 309; Mundy v. Meyer, 100 Neb. 296, 159 N. W. 404.

Error cannot be predicated upon a rejected offer of proof not within the limits of a question asked.

Hans v. American Transfer Co. 90 Neb. 834, 134 N. W. 943; Barr v. Post, 56 Neb. 698, 77 N. W. 123; Pike v. Hauptman, 83 Neb. 172, 119 N. W. 231; Havlik v. St. Paul F. & M. Ins. Co. 87 Neb. 427, 127 N. W. 248.

The proofs must correspond with the allegations in a complaint or answer, and any departure in the evi

(Neb., 181 N. W. 135.)

dence from the substance constitutes a variance and is fatal.

21 R. C. L. 609; Cockins v. Bank of Alma, 84 Neb. 624, 133 Am. St. Rep. 642, 122 N. W. 16; Dennison v. Daily News Pub. Co. 86 Neb. 862, 126 N. W. 764.

Where a broker's commissions are expressly conditioned upon consummation of the contract to be negotiated, it must be performed by the parties thereto to warrant recovery of the remuneration. If such performance is prevented by arbitrary action of the employer, the condition is thereby waived, and he may recover his commissions in spite of the fact that the contract is never consummated.

4 R. C. L. 311; Pfanz v. Humburg, 82 Ohio St. 1, 29 L.R.A. (N.S.) 534, 91 N. E. 863; Alvord v. Cook, 174 Mass. 120, 54 N. E. 499; Meltzer v. Straus, 61 Misc. 250, 113 N. Y. Supp. 583; Micks v. Stevenson, 22 Ind. App. 475, 51 N. E. 492; Greenwald v. Rosen, 61 Misc. 260, 113 N. Y. Supp. 764.

Where a contract is one required to be in writing by the Statute of Frauds, there must be consideration for a modification by waiving some of its requirements, or else such new agreement must be executed.

Bowman v. Wright, 65 Neb. 661, 91 N. W. 580, 92 N. W. 580; Lincoln Realty Co. v. Garden City Land & Immigration Co. 94 Neb. 346, 143 N. W. 230, Ann. Cas. 1914D, 392.

There are two requisites essential to the exercise of equitable jurisdiction. in giving relief defensive or affirmative. The fact concerning which the mistake is made must be material to the transaction affecting its substance, and not merely its incidents; and the mistake itself must be so important that it determines the conduct of the mistaken party or parties.

2 Pom. Eq. Jur. 4th ed. p. 1747; Hayes v. O'Brien, 149 Ill. 403, 23 L.R.A. 555, 37 N. E. 73; Lamoreaux & Peterson v. Phelan, Shirley & Callahan, 89 Neb. 47, 130 N. W. 988.

A decree of specific performance may be entered where the contract is certain and complete, or contains provisions which are capable in themselves of being reduced to certainty, and from which the intention of the parties can be clearly ascertained.

25 R. C. L. 218; Parkhurst v. Van Cortland, 14 Johns. 15, 7 Am. Dec. 427.

Parol evidence cannot show the in

tent of the parties, if it cannot be found in the contract.

5 Pom. Eq. Jur. 4th ed. p. 4914; Fry v. Platt, 32 Kan. 62, 3 Pac. 781.

Dorsey, C., filed the following opinion:

The plaintiff, Theron C. Hecht, recovered judgment upon a directed verdict against the defendant, Albert F. Marsh, upon a real-estate broker's written contract for the sale of the defendant's land in Arthur county, which provided for the payment of a stipulated cash commission "if a sale is made, or a purchaser therefor found, at the price and upon the terms specified herein, or at any other price or terms which I may hereafter authorize or accept." The terms specified were that the land might be sold for $9,600, of which $2,920 was to be paid in cash, $2,100 by the purchaser assuming encumbrances in that amount, and the balance to be arranged "to suit purchaser."

The plaintiff brought the defendant and one Jack Baker together, and on April 25, 1917, a written sale contract was executed whereby Baker agreed to purchase the land at $9,600, to be paid by his deeding to the defendant a quarter section in Perkins county, assuming existing mortgages on defendant's land in the sum of $2,100, and giving a new mortgage back to the defendant on the land conveyed to Baker in the sum of $3,500. This contract called for the furnishing of good and sufficient deeds and abstracts of title mutually by the parties not later than May 10, 1917. But about May 1, 1917, Baker notified the defendant by letter that he would not fulfil the contract, and it was never carried out, the defendant taking no steps to enforce it.

In his petition the plaintiff set out the broker's contract and alleged that the sale contract above mentioned was entered into through his efforts pursuant thereto; that he had fully performed and was entitled to the stipulated commission, for which he prayed judgment.

The answer set up Baker's failure

to comply with the terms of the sale contract, and averred that at the time of the negotiations with Baker the defendant insisted that a forfeit be deposited, and stated that he would not sign a contract without such forfeit, and that, in order to secure his signature to the contract, the plaintiff orally agreed with the defendant to waive any claim to commissions unless the sale should be completed in accordance with the terms of the contract. These allegations were put in issue by reply.

The defendant offered parol evidence at the trial to prove, in substance, that after the negotiations between Baker and himself were about to fail because of Baker's inability to post forfeit money, the plaintiff, in order to prevent a failure of negotiations and to induce the execution of a contract of sale, orally agreed to make his claim for commissions in the transaction contingent upon the purchaser's compliance with the contract. The offered evidence was excluded, and an issue of law is thus squarely presented as to whether a contract between a landowner and a broker, required by the statute to be in writing, is susceptible of subsequent parol modification with respect to the compensation provided for therein.

It has been held by this court that the general rule prohibiting the subsequent oral modification of contracts required by the statute to be in writing applies only with respect to those provisions which the statute expressly requires to be contained in the writing in order to make it valid. Hetzel v. Lyon, 87 Neb. 261, 126 N. W. 997; Rank v. Garvey, 66 Neb. 767, 92 N. W. 1025, 99 N. W. 666. Two provisions only are specifically mentioned in § 2628, Rev. Stat. 1913, as essential to contracts employing brokers to sell land,namely, that the land be described and the compensation set forth. The modification which the defendant set up in his answer and offered to prove in the instant case relates to the compensation. The plea is

that the defendant's agreement under the written contract to pay the stipulated commission in case the plaintiff made a sale on terms satisfactory to the defendant was changed, by subsequent oral agreement, into a promise to pay it only in the event that the purchaser should perform his contract. If, therefore, the rule of the cases last cited is to be rigorously applied, there was no error in the exclusion of the offered evidence.

If there is any factor in the instant case which removes it from the operation of that rule, it must be found in the fact that when, according to the defendant's offered proof, the negotiations were about to fail because of Baker's inability to meet the defendant's terms, the plaintiff interposed between the parties, and offered the defendant an inducement to waive his right to insist upon those terms, by promising not to claim commissions if Baker did not perform. Taking the defendant's offer of proof as true, the situation was that Baker was not ready to deal upon the terms upon which the defendant had authorized the plaintiff to sell his land. Instead of $2,920 in cash, he proposed to pay no cash at all, but to put in his land in Perkins county as the equivalent of $4,000 of the purchase price. Not only was Baker's proposition a material departure from the terms upon which the defendant had authorized his land to be sold, but Baker was unwilling or unable to comply with the custom in such transactions and to put up forfeit money as an evidence of good faith. Under those conditions it would not be unlikely that the defendant was reluctant to approve the proposition and to enter into a contract for the sale of his land, thus subjecting himself to the payment of commissions, without adequate assurance that Baker would perform on his part.

It was, moreover, the defendant's absolute right to stand upon the terms embodied in his authority to the plaintiff to sell the land, and to

(- Neb. - 181 N. W. 135.)

refuse to negotiate with Baker upon other terms. According to the defendant's offered proof, that was his attitude until the plaintiff intervened with his offer to claim no commissions if Baker should fail to carry out his contract.

If the defendant had persisted in his refusal to deal with Baker on the altered terms, it will not be contended that the plaintiff would have been entitled to commissions, because the latter would have failed in the primary condition of his right to commissions, which was to produce a purchaser able, ready, and willing to buy upon the terms of the contract, or upon any others that the defendant might approve. And if

the defendant had consented to the altered terms, without any inducement being held out to him by the plaintiff, his liability for commissions would be unquestionable. But in the instant case we have the additional element of persuasion or inducement utilized by the plaintiff to overcome the defendant's objections to the altered terms, in the form of an express promise to relieve the defendant of any liability to him if Baker did not perform. The question is whether such a waiver, not in writing, under the accompanying circumstances of influence exerted upon the defendant to overcome his resistance and induce him to execute a contract that he would not otherwise have entered into, will operate to modify the plaintiff's right to commissions under the written broker's contract.

Aside from the special circumstance that the writing was one within the Statute of Frauds, we should instantly say that the situation presented was such as general considerations of equity ought to preclude the plaintiff from taking advantage of. Yielding to the influence of the plaintiff's offer to waive commissions if the purchaser failed to perform, the defendant waived the terms upon which he had the right to insist, and entered into a contract which, within a week, the purchaser expressly repudiated and

refused to fulfil. Will the fact that the contract was within the Statute of Frauds prevent its subsequent oral modification under circumstances which, in the case of a contract not within the statute, would estop a party to it from denying the modification?

In Simonton, Jones & Hatcher v. Liverpool, L. & G. Ins. Co. 51 Ga. 76, the following rule is announced: "Equity will not allow the Statute of Frauds to be used as an instrument of fraud, and will decree specific performance, or hold the maker of a parol contract estopped from denying it, when the other party, by virtue of it, and under and in pursuance of it, has so far acted as that it would be aiding in a fraud to permit the contract to be repudiated. And what equity would do, our courts of law, under proper allegations, will also do."

Estoppel-to

take advantage of absence of

writing.

When applied to this case, the rule would mean that, if the plaintiff, by his conduct in assuring the defendant that he would be out nothing in commissions if Baker failed to perform, lulled the defendant into a sense of security, induced him to abandon objections upon which he had the right to insist, and persuaded him to make a contract that he would not otherwise have entered into, equity would not permit the plaintiff to repudiate his oral agreement on the ground of the Statute of Frauds.

Gerard-Fillio Co. v. McNair, 68 Wash. 321, 123 Pac. 462, is a case in which the facts bear considerable similarity to those in the instant case. There the broker, in order to overcome the objections of his principal to a certain proposed exchange which was not according to the terms prescribed in his written authority, consented, in lieu of the agreed commission, to accept a sum of money and the conveyance of certain lots. The principal thereupon entered into the exchange, the properties changed hands, and the principal paid the sum of money and

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