36-107 Sale of lands; owner's contract with agent or broker; when void. - Nebraska Statutes

36-107. Sale of lands; owner's contract with agent or broker; when void.Every contract for the sale of lands between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent. Such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent. SourceLaws 1897, c. 57, § 1, p. 304; R.S.1913, § 2628; C.S.1922, § 2456; C.S.1929, § 36-108; R.S.1943, § 36-107.Annotations1. Contracts within statute2. Contracts not within statute3. Signature to contracts4. Form of contract5. Essentials of contract6. Oral modification7. Actions on contract8. Miscellaneous1. Contracts within statuteOral contract with broker to sell land or obtain purchaser for owner is void. Nelson v. Woodhouse, 112 Neb. 359, 199 N.W. 811 (1924).Authority to sell is not extended by implication to include land not described. Spanogle v. Maple Grove Land & Live Stock Co., 104 Neb. 342, 177 N.W. 164 (1920).An oral contract cannot be enforced by the broker or agent. In re of Brockway's Estate, 100 Neb. 281, 159 N.W. 421 (1916).Oral promise is unenforceable but is sufficient consideration for note. Mohr v. Rickgauer, 82 Neb. 398, 117 N.W. 950 (1908).Voluntary act of both parties thereto is required to completely execute valid contract. Allen v. Hall, 64 Neb. 256, 89 N.W. 803 (1902).2. Contracts not within statuteReal estate broker's contract of employment to make exchange of land is not governed by statute. Dunn v. Snell, 124 Neb. 560, 247 N.W. 428 (1933).Sale should be distinguished from exchange of property. Gill v. Eagleton, 108 Neb. 179, 187 N.W. 871 (1922).Parol contract for commissions for exchange of land is not required to be in writing. Sallack v. Freeman, 106 Neb. 299, 183 N.W. 297 (1921).In an oral contract by a broker to assist in finding and purchasing personalty, a provision that certain realty shall be used in part payment at specified price will not make contract one for sale of land. In re of Brockway's Estate, 100 Neb. 281, 159 N.W. 421 (1916).Where an oral contract is made with agent for sale of real estate upon commission, and afterwards in order to satisfy the requirements of this section, the contract is reduced to writing before suit is brought, the contract may be enforced. Pierce v. Domon, 98 Neb. 120, 152 N.W. 299 (1915).Contract by which one employs agent to assist him in making exchange of properties is not within statute. Nelson v. Nelson, 95 Neb. 523, 145 N.W. 1004 (1914).Agreement between partners that one shall sell the real estate and have proceeds above certain amount is not within statute. Majors v. Majors, 92 Neb. 473, 138 N.W. 574 (1912).Oral contracts for sale between sub-agent and agent of owner are valid. Reasoner v. Yates, 90 Neb. 757, 134 N.W. 651 (1912).Section was not intended to apply to a sale made by the owner directly to a real estate agent. Waters v. Phelps, 81 Neb. 674, 116 N.W. 783 (1908).Validity of oral contract by agent to purchase land for principal raised but not decided. Bolton v. Coburn, 78 Neb. 731, 111 N.W. 780 (1907).Subsequent parol agreement, substituted for writing, will be upheld if executed. Lucas v. County Recorder of Cass County, 75 Neb. 351, 106 N.W. 217 (1905).Middlemen employed to secure from a former proposed purchaser the renewal of a former offer made for the land are not agents. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905).An oral agreement between parties to obtain refinancing for an existing loan which is to be secured by real estate mortgages does not constitute a sale of land within the statute of frauds. Wright & Souza, Inc. v. DM Properties, 1 Neb. App. 822, 510 N.W.2d 413 (1993).3. Signature to contractsWriting held sufficient both as to signature and description. Svoboda v. De Wald, 159 Neb. 594, 68 N.W.2d 178 (1955).Signature at top of instrument meets requirement. Dollarhide v. James, 107 Neb. 624, 186 N.W. 989 (1922).Agent need not sign contract authorizing him to subscribe contract for sale of real estate for his principal. Principal's signature is sufficient. Seberger v. Wood, 106 Neb. 272, 183 N.W. 363 (1921).Signature of broker printed under direction of brokers is sufficient. Berryman v. Childs, 98 Neb. 450, 153 N.W. 486 (1915).Where contract is signed by one claiming to be owner, it is no defense that he was not owner. Valerius v. Luhring, 87 Neb. 425, 127 N.W. 112 (1910).Subscribed means signed. Signature may be at top, bottom or middle. Myers v. Moore, 78 Neb. 448, 110 N.W. 989 (1907).4. Form of contractLetters between parties are sufficient and may create contract between principal and agent, though same papers are not signed by both parties. Shoff v. Ash, 95 Neb. 255, 145 N.W. 271 (1914); Pottratz v. Piper, 95 Neb. 145, 145 N.W. 265 (1914).Contract need not necessarily be on a single paper, but may be evidenced by letters containing required terms and signed by respective parties. Bradley & Co. v. Bower, 5 Neb. Unof. 542, 99 N.W. 490 (1904).5. Essentials of contractEvery contract for the sale of land between the landowner and a broker or agent employed to sell the land shall be in writing, signed by both parties, and shall describe the land and the compensation to be paid by the owner if the land is sold. Abboud v. Michals, 241 Neb. 747, 491 N.W.2d 34 (1992).In the absence of a specific dollar amount or percentage of the sale price, or some other formula whereby the amount of commission may be calculated with reasonable certainty, the specified compensation requirement of this section is unsatisfied. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).Signature of a third party beneficiary under a contract for sale of real estate not an essential requirement of statute of frauds. Mid-Continent Properties, Inc. v. Pflug, 197 Neb. 429, 249 N.W.2d 476 (1977).A sale of real estate made through a broker must be made in writing between the broker and the landowner. Donahoo v. Home of the Good Shepherd of Omaha, Inc., 193 Neb. 586, 228 N.W.2d 287 (1975).The fact that separate documents are part of a total writing which will satisfy the statute of frauds must be disclosed by their contents or express references therein. Abboud v. Cir Cal Stables, 190 Neb. 396, 208 N.W.2d 682 (1973).The terms under which the owner is willing to sell land need not be included in contract between broker and owner; and description of land in broker's contract was sufficient. Wisnieski v. Coufal, 188 Neb. 200, 195 N.W.2d 750 (1972).In order to extend a contract for the sale of land by parol there must be a contract in existence. Property Sales, Inc. v. Irvington Ice Cream & Frozen Arts, Inc., 184 Neb. 17, 165 N.W.2d 78 (1969).Terms of contract set out on carbon copy of purchase agreement were sufficient. Svoboda v. De Wald, 165 Neb. 50, 84 N.W.2d 211 (1957).Agreement must be in writing subscribed by agent and owner and set forth compensation. VerMaas v. Culbertson, Roe & Bell, Inc., 154 Neb. 528, 48 N.W.2d 674 (1951).Contract must be written, subscribed by the owner of land and broker, and set forth compensation to be allowed by owner. O'Shea & Son v. Leavitt, 125 Neb. 12, 248 N.W. 654 (1933).Contract is void unless amount of commission is stated. Howell v. North, 93 Neb. 505, 140 N.W. 779 (1913); Danielson v. Goebel, 71 Neb. 300, 98 N.W. 819 (1904).Memorandum setting forth total number of acres, accompanied by plat of land, sale price, and amount of commission to be paid, was sufficient. Clark v. Davies, 88 Neb. 67, 129 N.W. 165 (1910).Description need not be specific if it contains sufficient data to identify land with certainty. Powers v. Bohuslav, 84 Neb. 179, 120 N.W. 942 (1909).Description need not be specific if it can be made certain by parol without contradicting writing. Holliday v. McWilliams, 76 Neb. 324, 107 N.W. 578 (1906).Price at which sale is to be made is not required to be shown and may be changed by parol. Rank v. Garvey, 66 Neb. 767, 92 N.W. 1025 (1902), aff'd on rehearing, 66 Neb. 784, 99 N.W. 666 (1902).Terms not required to be in writing may be changed by parol agreement. Bradley & Co. v. Bower, 5 Neb. Unof. 542, 99 N.W. 490 (1904).Parol acceptance by agent of written offer by owner is insufficient to comply with statute. Spence v. Apley, 4 Neb. Unof. 358, 94 N.W. 109 (1903).Letters signed by owner and broker describing property and fixing commission in case of sale are sufficient to comply with statute. Massachusetts Mut. Life Ins. Co. v. George & Co., 148 F.2d 42 (8th Cir. 1945).6. Oral modificationParty inducing reliance on oral modification of contract within statute of frauds will be estopped to claim invalidity of such oral modification. Hecht v. Marsh, 105 Neb. 502, 181 N.W. 135 (1920).Agent cannot defend, in action for damages caused by his fraud, on ground that contract of agency was void because not in writing. Maul v. Cole, 94 Neb. 714, 144 N.W. 247 (1913).There must be consideration for an oral modification of contract by waiving some of its requirements. Lincoln Realty Co. v. Garden City Land & Immigration Co., 94 Neb. 346, 143 N.W. 230 (1913).If oral contract is fully executed by parties, and either party is damaged by fraud of the other, injured party may recover. Latson v. Buck, 87 Neb. 16, 126 N.W. 760 (1910).7. Actions on contractA contract for payment of a real estate commission is analogous to a contract for the sale of real estate, inasmuch as the same equitable principles govern both types of contracts in relation to the statute of frauds. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).Equitable enforcement of a brokerage contract, otherwise unenforceable due to this section, is available when the contract has been fully performed by one party and nonfulfillment of the contract would amount to a fraud on that party. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).While certain contracts are declared "void" under this section, such contracts are not void but are merely unenforceable for want of evidence which the statute requires. Weiner v. Hazer, 230 Neb. 53, 430 N.W.2d 269 (1988).Broker withholding from principal material facts cannot recover commission. Pearlman v. Snitzer, 112 Neb. 135, 198 N.W. 879 (1924).Petition disclosing on its face that contract was not in writing, is demurrable. Gill v. Eagleton, 108 Neb. 179, 187 N.W. 871 (1922); Smith v. Aultz, 78 Neb. 453, 110 N.W. 1015 (1907).Petition not alleging that agreement was in writing is sufficient after judgment. Thackaberry v. Wilson, 90 Neb. 448, 133 N.W. 841 (1911).A broker, relying on special contract, cannot recover on quantum meruit. Clark v. Davies, 88 Neb. 67, 129 N.W. 165 (1910); Rodenbrock v. Gress, 74 Neb. 409, 104 N.W. 758 (1905); Blair v. Austin, 71 Neb. 401, 98 N.W. 1040 (1904).Agent may recover for breach of contract where agency is exclusive though commission was not earned. Hallstead v. Perrigo, 87 Neb. 128, 126 N.W. 1078 (1910).Where agency contract to sell land is oral, recovery cannot be had under quantum meruit on basis of time expended or reasonable value of services. Nelson v. Webster, 83 Neb. 169, 119 N.W. 256 (1909); Barney v. Lasbury, 76 Neb. 701, 107 N.W. 989 (1906).Agent, to recover, must show written contract, subscribed by parties, and setting forth his compensation. Tracy v. Dean, 77 Neb. 382, 109 N.W. 505 (1906).Agency must be proved by writing and oral promise after sale is insufficient. Covey v. Henry, 71 Neb. 118, 98 N.W. 434 (1904).Question of effect of failure to plead statute and to object to parol evidence as waiving defense was raised but not decided. Dillon v. Watson, 3 Neb. Unof. 530, 92 N.W. 156 (1902).This section does not preclude recovery under an oral agreement for sales commission where broker has fully performed under the oral agreement. Kaus v. Bideaux, 709 F.2d 1221 (8th Cir. 1983).8. MiscellaneousA joint owner of land is an "owner" under this section, so that a joint owner of land who falsely represents sole ownership may not avoid full payment of a broker's commission. Marathon Realty Corp. v. Gavin, 224 Neb. 458, 398 N.W.2d 689 (1987).A promissory note given by a vendor to a real estate broker and accepted by the broker in payment for a commission is enforceable even if there was no written sales contract between the vendor and the broker. Peterson & Vogt v. Livingston, 206 Neb. 753, 295 N.W.2d 106 (1980).A real estate broker becomes the agent of the property owner, and owes the fiduciary duties incident thereto, from the moment the parties orally agree to the listing of the property. Vogt v. Town & Country Realty of Lincoln, Inc., 194 Neb. 308, 231 N.W.2d 496 (1975).Where party enters into contract as vendor to sell land, he cannot be heard to say that he had no interest in the lands when sued for broker's commission. Sohler v. Christensen, 151 Neb. 843, 39 N.W.2d 837 (1949).Statute is inapplicable to act authorizing agent by writing to subscribe contract for sale of land. Seberger v. Wood, 106 Neb. 272, 183 N.W. 363 (1921).Section is constitutional. Baker v. Gillan, 68 Neb. 368, 94 N.W. 615 (1903).