107 Wis. 531 | Wis. | 1900
The case of McArthur v. Slauson, 53 Wis. 41, is couclusive against any recovery by plaintiffs founded upon performance of the express contract of employment; for no evidence is offered that their alleged customer was ever ready or willing to pay any price in excess of $10,000. The utmost extent of that evidence is that he was willing to take the farm into consideration, and, as the plaintiff Ames testifies, “ was then to make his offer.” Performance of the contract consists in producing a purchaser ready, able, and willing to pay the price fixed. McArthur v. Slauson, supra. Uor have plaintiffs established a right to recovery in damages founded on defendant’s breach of the contract. It may well be that, when a real-estate agent produces a customer ready to consider the property and notifies the owner, the latter owes a duty in good faith to endeavor to hold the purchaser up to the price nominated, and to refrain from any act to deter him therefrom, or, while still considering, to suggest possibility of acceptance of a less price. There is, however, no scintilla of evidence of any such conduct on defendant’s part. Plaintiffs did not attempt to offer any proof of the transaction between Uesbit and defendant except that ultimately sale was made at $10,000. This fact is in no wise inconsistent with the utmost good faith and
Appellants, however, seek to avoid the rule of McArthur v. Slauson, supra, by abandoning the express contract to pay only excess over $10,000, and suing upon an implied contract to pay the reasonable value of their services in-finding any purchaser. They invoke the elementary rule that he who knowingly avails himself of the benefits of another’s services is presumed by the law to have intended to pay for them their reasonable value, and a promise so to do is implied. This rule is, however, restricted by limitations as elementary as itself, such as that the services must have been rendered and received under circumstances to warrant the inference of expectation and intention of payment. If there is an express agreement to which such services may be ascribed, the expectation of payment is presumptively according to the terms expressed. An express agreement to pay one dollar per day for certain services excludes any implication of promise to pay fair value, whether more or less. In the case before us the plaintiffs’ services were obviously rendered on the faith of the express promise to pay therefor only the excess obtained over $10,000. This fact wholly excludes any inference or implication of a different understanding by them or promise by defendant. In the presence of the express, there is no room for an implied,, promise. Tietz v. Tietz, 90 Wis. 66.
Appellants urge also that the complaint sets forth another promise made by defendant, namely, that he would ask Nesbit $45 per acre for his land. They claim recovery for breach thereof. The consideration for any such promise is not very obvious, since it was made after all of plaintiffs’ services had been rendered. Apart from that objection, however, no breach of such promise is alleged or proved. As previously pointed out, defendant may have demanded
The circuit court rightly decided that no cause of action had been established, and properly ordered nonsuit.
By the Gourt. — -Judgment affirmed.
