Dean v. Wendeberg

175 Wis. 513 | Wis. | 1921

Jones, J.

The contract sued on was made in the state of Illinois, hence the Wisconsin statute relating to contracts for brokers’ commissions is not involved.

Ordinarily a real-estate agent is entitled to his commission if he has produced a person ready, willing, and able to buy on the terms authorized by the vendor. In the absence of any agreement to the contrary, the commission is earned when the proposed purchaser is able and willing to take the property or enter into a valid contract upon the terms which' have been specified by the principal. Willes v. Smith, 77 Wis. 81, 45 N. W. 666; Rees v. Spruance, 45 Ill. 308; Wilson v. Mason, 158 Ill. 304, 42 N. E. 134. See many cases cited in 44 L. R. A. 593.

In order to protect himself the vendor may include in the agreement with the broker a "provision that the commission' shall not be paid unless the deal is consummated, and of course such an agreement should be enforced according to its terms unless some good reason is shown to the contrary. Felts v. Butcher, 93 Iowa, 414, 61 N. W. 991; Flower v. Davidson, 44 Minn. 46, 46 N. W. 308; Stewart v. Fowler, 37 Kan. 677, 15 Pac. 918.

But it would be manifestly unjust that the principal could avoid paying a commission fairly earned if by his own'fault or misconduct or wrongful neglect he has prevented the consummation of his contract, with the buyer, and'the courts will not sanction such injustice. Phelps v. Monroe, 166 Wis. 315, 165 N. W. 471; miles v. Smith, 77 Wis. 81, 45 N. W. 666; Bowe v. Gage, 132 Wis. 441, 112 N. W. 469; Fox v. Ryan, 240 Ill. 391, 397, 88 N. E. 974; Brown v. Wilson, 98 Iowa, 316, 67 N. W. 251; Smith v. Schiele, 93 Cal. 144, 28 Pac. 857; Gilder v. Davis, 137 N. Y. 504, 33 N. E. 599. See note to Brackenridge v. Claridge (91 Tex. 527, 44 S. W. 819) 43 L. R. A. 593.

It is the question in this case whether the plaintiff should be deprived of his commission because, under the circumstances, the defendants refused to complete the agreement to sell. They contend that the contract with the purchaser was procured by fraud and therefore they were under no obligation to complete it.' Whether, if the fraud were proved, this would be a defense to an action on this contract for commissions, it is not necessary to decide.

The trial court found, in substance, that plaintiff and Keating had made no false representations; that defendants made the agreement knowing all the facts; and that the agreement was made after defendants had consulted their attorney and personally inspetted the farm; that the contract between Keating and defendants was valid and enforceable up to the time of rescission; that the refusal of defendants to live up to it was “wilful’and arbitrary and without any legal justification or excuse;” and that the agreement to rescind made by defendants and Keating on February 28, 1919, constituted a new contract.

In our opinion the findings of fact were fully justified. This does not come within that class of cases where the representations relate to the value of property so far distant that investigation would be expensive and difficult, or to representations made to ignorant persons, or by those acting in a fiduciary capacity.

The defendants had every opportunity before the contract to make full and easy investigation as to the value of the land covered by the securities they agreed to take. It is by no means clear that the notes and mortgage were not worth their full face value, since it appears that their full value was realized by Keating, the owner, and there seems no good reason why defendants could not have obtained their face value if they had completed the transaction and used reasonable care.

Appellants’ counsel urge that the willingness of Keating to cancel the contract afforded some evidence of the fraud. There are two obvious answers to this argument. He may not have supposed the trade so advantageous to himself that it was best to bring an action for specific performance. Moreover, it not infrequently happens that parties prefer to forego some legal right rather than undergo the expense and annoyance of long litigation. Such choice does not necessarily call for any unfavorable inference. There is no proof that the plaintiff made any false representations, and it is clear that he fully and fairly rendered the service contemplated by the agreement.

There is considerable discussion in the briefs whether the voluntary cancellation of the contract by defendants and Keating was a “new or different contract” within the meaning of the brokerage agreement. It is also argued by respondent with much force that it was the legal effect of the brokerage agreement that the commission had already been earned and that there was no condition of payment but only a clause fixing the time of payment beyond which plaintiff would not be required to wait in any event.

According to our view, since there is ample evidence to sustain the findings of the trial court on the points already discussed, it becomes unnecessary to consider these questions.

By the Court. — Judgment affirmed.