109 Wis. 275 | Wis. | 1901
There is but one debatable question in this case, and that is whether the defendant Griswold’s arrangement with T. L. Cleary was merely an authority to seek and produce customers for the defendant’s property, or whether, as between themselves, it was contemplated and agreed that Mr. Cleary was to sell the property at prices named and bind Mr. Griswold to such sale. This depends upon what was the conversation which the parties confessedly had at about the time the defendant left Platteville, in 1892, as to which different versions are given by Mr. Cleary and by the defendant in their testimony. This conversation, in which the agreement, whatever it was, was made, was followed by several years of correspondence and other transactions, all referring back to that original arrangement, and they are relevant and material mere!}7 as declarations and conduct evidentiary, and by way of practical construction, of the agreement into which Cleary and Griswold had already en
This eighteenth finding is ambiguous. It does not declare the conclusion of the trial judge either way upon the real litigated issue, namely, whether Griswold's authority to Cleary was to close sales and commit him to them, or was only to present customers for his acceptance or rejection. The natural construction of the words used in the eighteenth finding would indicate no more than a decision either of the question of fact whether Griswold expressly authorized Cleary to execute the specific written contract, or a question of law whether authority so to do resulted from the transactions between them. It was stated upon the argument, without dissent, that a question largely debated before the trial
Being thus without such finding, three courses are open to us on appeal. If the evidence clearly supports the judgment, we. should affirm it. Jones v. Jones, 71 Wis. 520; Raipe v. Gorrell, 105. Wis. 636. Failing this, if the question is in doubt and uncertain, so that a decision here might work injustice, we should reverse and remand for further trial. Kemp v. Seely, 47 Wis. 687; Cramer v. IIanaford, 53 Wis. 85, 88; IIill v. Am. S. Co. 107 Wis. 19, 28, 34. But if an examination of the evidence discloses with reasonable certainty a preponderance in favor of the plaintiff’s contention, it is our duty to direct judgment in accordance therewith. Maldaner v. Smith, 102 Wis. 30, 41; Hamilton v. Menominee Falls Q. Co. 106 Wis. 352; Hill v. Am. S. Co., supra. We proceed, therefore, to an examination of the evidence.
Mr. Cleary’s testimony as to the only interview in which authority was given is as follows:. “He told me to sell it if I could, and gave me the prices upon the property. The price on the back lot that McBride bought was $1,500, and upon the front lot upon which his (Griswold’s) house stood it was $3,500. My commission was to be $50 on the back lot, and $100 on the front one.” The respondent’s version was substantially as follows: “I asked him what he would charge me to find a customer for me, in case I concluded to sell it, and I fixed my price at $5,000. To my question he replied that he Avould charge me $25. I says, ‘ That’s reasonable, Tom.’ And I says, ‘ If you succeed in finding some one that will pay my price, I think probably I will be willing to pay a little more.’ ... In any case, he was to
As we have stated before, the question is, Whát was the arrangement originally made between Cleary and the defendant ? for there is nothing in the correspondence to modify or change that, except, perhaps, as to price. A significant thing is that the earliest correspondence following that arrangement assumes authority in Cleary to make a sale. Ilis very first letter takes occasion to inform defendant that no sale is yet made,— an utterly meaningless remark, if, as defendant claims, he was only to submit customers. Cleary’s view is confirmed by frequent remarks in defendant’s letters indicating his understanding that Cleary was to make a sale, and most cogent of all is the fact that Cleary, a lawyer of standing and reputation, obviously devoted to the interest of his friend and neighbor, the defendant, at the first opportunity to obtain the price which defendant had named, considered himself authorized to make a binding written agreement of sale, and to that understanding defendant gave assent in everything except direct words. He approved, he executed deed, acknowledged his duty to make title and fur-
This is the whole controversy. The only two witnesses to the transaction have testified in full. The entire correspondence is before us. We have not the slightest doubt where the true preponderance of evidence is, and can see no reason to expect that anything could be gained by further trial or investigation of this mooted question. It therefore becomes our duty to reverse, and to direct entry of such judgment as the circuit court should have rendered upon this evidence. As against defendant, no reason is apparent why specific performance should not be decreed. He has,, perhaps, disabled himself from making a conveyance Avhich,
By the Cowrt.- — -Judgment reversed, and cause remanded with directions to enter judgment in favor of the plaintiff in accordance with this opinion.