Bowe v. Gage

132 Wis. 441 | Wis. | 1907

Winslow, J.

There can be no doubt that the plaintiffs would have been entitled to judgment had there been no modification of the original commission contract. By this contract the defendants agreed to pay two per cent, commission, for the procuring of a purchaser for the farm at a price acceptable to the defendants. The plaintiffs procured a purchaser who made an offer of $17,000. Thereupon the defendants, by falsely representing that they had decided not to sell the farm, made a settlement with the plaintiffs for their services by paying them $25, and procured a receipt in full, and then proceeded to sell the farm and a small amount of personal property thereon to the purchaser whom the plaintiffs had secured. The receipt having been obtained by means of a false and fraudulent representation of fact at once drops out of the case, and the plaintiffs would be entitled to recover their commissions (less the $25 already received) because they had fulfilled their contract and produced a purchaser at a price which had in fact been accepted by the defendants. The modification of the contract adds, however, an element of difficulty to the case.

The date of this modification is not fixed by the verdict, but, as the evidence on which the finding rests is practically undisputed, there is no difficulty in fixing the date or the circumstances under which it was made. Prior to January 22, 1903, the plaintiffs had received an offer from Ferber of $17,000 for the farm and the personal property on it, which the defendants had refused. On the 22 d day of January the defendant B. N. Gage wrote a letter to the plaintiffs, which they received on the following day, stating that the heirs who owned the farm had concluded that it was best that he (R. N. Gage) should buy the place, but that, owing to the fact that plaintiffs had been to considerable expense and trouble in trying to sell the place, they had agreed to let matters rest until the last of the following week before deeding. The letter then proceeded as follows:

“Now if you can close with Eerber or any other party for $18,000 including our share of the personal property, your compensation to be $200 including the making of all papers necessary to make the transfer, close her up.”

The plaintiffs accepted this proposition by acquiescing therein, and made another attempt to sell to Eerber, and induced him to offer $17,000 for the farm without any personal property; but this was refused by Gage, the farm was not deeded by the other heirs to Gage, and the plaintiffs’ agency under the modified agreement continued until Eebruary 20th, when by means of the false representation before mentioned the defendants settled with the plaintiffs for $25, and then proceeded without plaintiffs’ knowledge to negotiate with Eerber, and induced him to purchase the farm (and personal property-to the amount of $144) for $17,500. The interest of the heirs in the personal property on the farm was soon thereafter sold in the open market to others for $720, making in all the sum of $18,220 realized by the defendants for the farm and personal property. It seems almost a necessary inference from the testimony and facts found by the jury that the modified proposition was made by the defendant Gage with the secret intention of taking the property out of the plaintiffs’ hands and dealing with Eerber independently, and thus avoiding the payment of plaintiffs’ ■ commission; but, as this question was not passed upon by the jury, we cannot proceed upon such an assumption.

The case may be stated abstractly as follows: A. employs B. to sell his farm and a small amount of personal property, with the understanding that B. is to receive a commission of $200 in case he procures a purchaser for $18,000, otherwise nothing; B. secures a prospective purchaser, who bids $17,000 for the bare farm; A. rejects the offer, and falsely represents to B. that he has concluded to retain the property himself, and under this representation settles with B. for his services at a nominal price and takes the property out of his hands; A. immediately goes to the bidder secured by B. and negotiates with him a sale of the farm and part of the personal property for $17,500, - and closes out the balance of the -personal property on the "public market at $720, thus realizing for the entire property $18,220; the settlement was fraudulently made with the purpose of depriving B. of his commission in case a sale was finally made. Can A. escape liability for the payment of the agreed commission? If he can, it is evident that injustice is accomplished under the forms of law; hut we do not think he can. If B.’s contract was to produce a purchaser for $18,000 or receive no compensation, and he did nothing but to secure a customer who offered only $17,000, the mere fact that A. afterwards sold to this customer for $17,000 would not entitle B. to his commission unless the customer was ready and willing to pay $18,000, and A. voluntarily accepted the reduced price with knowledge of that fact. In the latter case he would waive the requirement as to price and become liable for the commission. McArthur v. Slauson, 53 Wis. 41. In the ease now before us we think there was a waiver of the requirement that a certain price was to he obtained fully as persuasive as in the case supposed. By taking ,the property out of the hands of the plaintiffs on a false and fraudulent representation of fact, after the plaintiffs had secured a customer who offered a price only slightly lower than that required, and while the plaintiffs were desirous of negotiating further, and then secretly selling to the customer the major part of the property and the balance to others, so that more than the required price was realized, we think the. defendants have effectually barred themselves from claiming that the plaintiffs have not earned their money. By a fraudulent device they prevented the plaintiffs from fully completing their undertaking, and then completed it themselves. They canuot now be heard to urge a default which they themselves purposely created and afterwards supplied in accordance with such purpose.

The appellants claim that it was error to submit the question of modification of the contract to the jury, because that fact was not originally pleaded as a defense. It appears, however, that the evidence on which the finding was -based was received without objection, and that the court after verdict allowed an amendment to the answer alleging the modification as a defense. We find no abuse of discretion in this.

The result is that the plaintiffs should have recovered judgment upon the verdict and undisputed facts for the agreed commission under the modified contract, less the $25 which they had received.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the plaintiffs in accordance with this opinion.