The opinion
On Petition for a Rehearing.
Dailey, J.
The learned counsel for the appellees ask that a rehearing be granted for the reason that the conclusion of the court, as rendered in its opinion, should be modified so far as it relates to the assessment of the damages. As suggested, the main subject discussed by counsel on both sides, and considered by the court in its opinion, was whether or not the appellants were entitled to an injunction. Counsel do not seek a change in the decision as to the leading question involved, but insist there is nothing in the special findings of facts, which would justify a judgment in favor of the appellants for the *618 sum of five hundred dollars commissions claimed to be due Newton Jackson, by reason of an attempted sale of lumber by him to the Studebaker Brothers Manufacturing Company.
It is found and set forth in the original opinion, that Newton Jackson made an offer to said company to sell them two million feet of lumber, which offer was based on the price lists of the West Michigan Lumber Company; that said Jackson could not obtain said lumber of any other firm as cheaply and conveniently as from the firm last named; that his commission thereon would have been $500; that the offer of said Jackson was accepted by the Studebaker Brothers Manufacturing Company, but said West Michigan Lumber Company refused to sell to or through said Jackson by reason of the rules of the association, and on account of having paid a penalty of $100, and thereupon said Jackson did not contract, but turned over said sale to the West Michigan Lumber Company and allowed the company to make the sale without paying any commission to him. In commenting on this finding counsel say:
“The substance of the first part of this finding is that Jackson offered to sell to the Studebakers two million feet of lumber. It does not show what price he was to pay the lumber company, or what price the Studebakers were to pay to him, or what profits he would have made had the proposed contract been carried out. If, as found by the court, he made a straight agreement to sell to the Studebakers a certain, amount of lumber, he could not have been entitled to any commision. No dealer can make a commission when he is trading on his own account. If he buys for one price and sells for a higher price he may make a profit, but certainly not a commission. The word ‘commission/ as we understand it, means a ‘brokerage or allowance made to a factor or agent for the trans *619 acting of business for another.’ There is nothing in this finding to show that Mr. Jackson was ever acting as agent or broker for the West Michigan Lumber Company, and not being so found, it must be held that he was not the agent or factor of that company. Unless he was such agent or factor, he could not have a commission, and not being such agent or factor he was entitled to none. The finding of the court below must stand as it is written; that is to say, that he himself, on his own account, offered to sell to the Studebakers certain lumber, and it is not found what his profit on the transaction would have been. It may be implied, and very possibly is implied, that if he had made the sale as agent or broker or commission merchant for the West Michigan Lumber Company, then in such case he would have been entitled to a commission for his services. But the fatal defect is this: that it is not found that he was, but on the contrary it is practically found that he was not the agent, broker or commission merchant or factor for the West Michigan Lumber Company. Therefore it matters not what commission he might have made had he been such commission merchant or broker or factor or agent, and sold the lumber as such agent or broker, for the finding is, as we have stated, that he did not sell the lumber as an agent or broker. That finding, if it means anything, means that he sold the lumber on his own account; that he made a contract for a future delivery, but what his profits would have been on the transaction does not appear.”
We think the essential fact, found in relation to this matter, was that Jackson’s commission or profit — no difference by what name it may be called — would have been $500, had not the West Michigan Lumber Company ‘‘refused to sell either to or through him by reason of *620 tlie rules of the association, and on account of having paid said penalty.”
It is found that Jackson could most cheaply and profitably buy of the West Michigan Lumber Company, and based his offer on their prices. Appellees cut off this source of supply, and did all they could to exclude him from the market. It matters not whether the $500 would have been commission or profit. The finding calls it a commission, and says, but for the wrong of the appellees, he would have realized this amount in the transaction. The naked fact remains that the loss found to have been sustained is so definite and certain as to leave no room for cavil. It is less speculative than the future earnings of a physician or insurance agent, or the profits of a stallion’s services, which may constitute the basis of damages.
It is urged that the contract between the Studebaker Bros. Mfg. Co. and appellant Newton Jackson, is void under the statute of frauds, because the value of the lumber was over fifty dollars, and the finding does not show that the offer was accepted in writing. If this be true, it is no concern of the appellees. Parties to contracts and their privies can alone take advantage of the fact that a contract is invalid under the statute of frauds. Many forms of expression by this and other courts illustrate the doctrine that a third person can not make the statute of frauds available to overthrow a transaction between other persons; that the defense of this statute is purely a personal one, and can not be made by strangers. Burrow v. Terre Haute, etc., R. R. Co., 107 Ind. 432 ; Bodkin v. Merit, 102 Ind. 293 ; Cool v. Peters Box, etc., Co., 87 Ind. 531 ; Dixon v. Duke, 85 Ind. 434 ; Wright, Admr., v. Jones, 105 Ind. 17 ; Savage v. Lee, 101 Ind. 514 ; 8 Am. and Eng. Encyc. of Law, 659, and cases cited.
Filed April 6, 1894.
It concerns the remedy alone, and the modern law is well settled that in the absence of a statutory provision to the contrary, the effect of the statute is not to render the agreement void, but simply to prevent its direct enforcement by the parties, and to refuse damages for its breach. 8 Am. and Eng. Encyc. of Law, 658-9, and cases cited.
Counsel also take the position that the $500 was unearned commission or profit, and hence not recoverable.
In Niagara Fire Ins. Co. v. Greene, 77 Ind. 590 , one cause for a new trial was excessive damages. The appellant contended that the whole verdict was necessarily made up of profits or gains which the appellees might have received, and was, therefore, erroneous, but the court said that probable profits which might have been received, not remote or speculative, have often been allowed in proof, not as the measure of damages, but to aid the jury in estimating the damages.
The evidence is competent as a guide to aid in the exercise of a proper discretion. City of Logansport v. Justice, 74 Ind. 378 ; Fultz v. Wycoff, 25 Ind. 321 ; Frenzel v. Miller, 37 Ind. 1 .
As a matter of right and justice, and of law, we feel that the conclusion of the court allowing the appellants to recover the $500, for profits or commissions, should not be set aside.
The petition for a rehearing is overruled.