161 Wis. 624 | Wis. | 1915
It was conceded upon the trial that defendant’s farm was sold by an agent other than plaintiff within the time of the exclusive agency, if there was one. Defendant also concedes that if plaintiff had an exclusive agency he would be entitled to recover though he was not the procuring cause of the sale. This leaves for determination the sole question whether there was sufficient evidence of an exclusive agency to carry that issue to the jury. Plaintiff asserts and defendant denies that the original contract entered into between them gave him the exclusive right to sell the farm. Such contract was for a commission of $300. He worked under that for a while and then secured a modification of it because the commission was inadequate, and the question is, Was this modified contract one for an exclusive agency? Upon this subject plaintiff’s testimony is as follows:
“We got out of the car and Doyle, Cullen, -and myself walked up onto the porch. I said to him L wanted to see him about the farm, and he said all right and we sat down on the*626 porch. I told him that I couldn’t afford to handle the farm on the basis that' I had it. That it was hard to enlist the-services of other real-estate men upon that basis, because-there was nothing to split with them; the time we split $300-there was nothing in it for any other agent, and that I wanted to make other arrangements with him if possible for more-money in case of a sale. Doyle asked what I wanted and I said: that two per cent, on a farm — on any farm — was regular;, but on a fárm as rough as his farm and as large, hard to sell,, that a man ought to have $5 an acre. He said he would -not give it to me. ‘Well,’ I said, ‘what is the matter with holding the farm — or you accepting $95 an acre net and allow me-all that I can get over. If I can get $100 an acre the $5 is-mine. That is, whatever I can get over is mine.’ And he-said, ‘Well, I don’t know, I will see.’ And he went into the-house, presumably to talk to his wife, because he said ‘I will talk it over with my wife,’ and he came out in a few minutes- and said iWe will do that.’ I wouldn’t say whether his wife-came back with him, but I think she did. And I told him. that it was understood that I had the exclusive agency the-same as before and that he had to hold it at $100 an acre and. send all purchasers to me; if there was any cutting in the-price to be done that I would do it, but I told him that I would not hold for $100 an acre if I had an offer of anything over $95 and couldn’t do any better that I would sell the farm, before January 1st, as he said it would have to be sold before January 1st, 1915, or he would have to make other arrangements, he would have to know what he could do. And I said to him, ‘We ought to have something in writing to this effect,’ and he said, ‘It isn’t necessary to have this in writing with me. My word is as good as my bond.’ I said, ‘Cullen,, you heard the agreement.’ He said ‘Yes.’ ”
Cullen, who drove plaintiff to defendant’s house and who-was present during the conversation, corroborates plaintiff as-to what was said.
Relative to the testimony of the plaintiff the court instructed the jury: “Now I charge you now on this testimony,, that, taking-the testimony of Bartlett as being absolutely true, it does not prove an exclusive agency to sell this land.” Er
By the Gouri. — Judgment reversed, and cause remanded for further proceedings according to law.
