44 Wis. 31 | Wis. | 1878
Lead Opinion
We think the nonsuit in this case was improperly granted. It is not necessary now positively to decide whether or not the plaintiffs could recover their commissions on the trade made with Parker; but surely they were entitled to recover something for their services in taking charge of the property, looking after it, and advertising it for sale. The correspondence shows that they were to be paid the actual expenses of advertising, and at the rate of $25 per annum for services in caring for the property, even if no sale was effected. And we can see no difficulty in the way of their recovering on that claim under the complaint. It is suggested that the action is upon a special contract, and that the plaintiffs were not entitled to recover upon a quantum, meruit, under the complaint. We do not think this position well taken. The complaint states fully the facts constituting the cause of action.
We are inclined to think, also, that a jury might properly have found, upon the evidence, that the plaintiffs were entitled to recover the commissions claimed. But this question is purposely left undecided until the defendants produce their evidence. The rule of law, as laid down by this court, applicable to this class of cases is, “ that a broker employed to make a sale at a price satisfactory to the seller, is entitled to his commissions when he produces a party who makes the purchase. And it is in general enough, in such a case, that the broker produces a party ready to make the purchase at a satisfactory price; and the principal cannot relieve himself from his liability by capricious refusal to consummate the sale, or
The judgment of the circuit court must be reversed, and the cause remanded for a new trial.
Concurrence Opinion
I. Where a contract for service fixes the price of it, it is doubtless a technical variance to declare for the service quantum valebat. When the contract is a formal one, an amendment might be necessary. But practice, under the code, is very liberal in respect of variance where the contract is not formal or written, resting loosely in conversation or correspondence. Prima facie, the price fixed by the parties is a fair one, quantum valebat; and evidence of the agreement might be held prima facie proof of the quantum val-ebat pleaded. In such a case the plaintiff might lose his right to recover the full compensation stipulated, upon the defendant’s proving the service to be worth less. He might be held to have waived his absolute right to recover the agreed price by tendering an issue of the value of the service. On the other hand, if the plaintiff should undertake to prove a higher value, the defendant could limit the right to recover by proof of the agreed price.
The contract here was equally within the knowledge of both parties; and if the defendants had made, and desired to avail themselves of, a tender, there was no difficulty in their pleading the contract price, their view of the extent of service rendered, and the tender.
Independently of secs. 33 and 34, ch. 12o, E. S., I should doubt whether, under the code, in an action on a contract so
But those sections appear to me to put the question beyond doubt. The first of them provides that a variance shall not be deemed material unless it be made to appear that it has actually misled the adverse party to his prejudice. And the second provides, in effect, that when the variance is not so material, the court shall disregard it, with or without amendment. The rule under these sections goes far beyond the necessity of this case. Fox R. V. Railroad Co. v. Shoyer, 7 Wis., 365; Fisk v. Tank, 12 id., 276; Bonner v. Insurance Co., 13 id., 677; Gardinier v. Kellogg, 14 id., 605; Danley v. Williams, 16 id., 581; Fery v. Pfeiffer, 18 id., 510; Muzzy v. Ledlie, 23 id., 445; Hazleton v. Union Bank, 32 id., 34. See also Eastman v. Bennett, 6 Wis., 232, before the code.
There is the less difficulty in so holding in this case, because the objection does not appear to have been specifically taken below, so as to put the appellants to their motion for leave to amend.
II. On the merits, there certainly appears to have been a case for the jury.
If the respondents consented to an exchange of properties, instead of a sale for money, it is difficult to understand why they should be heard to contend that such an exchange would not entitle the appellants to compensation.
There is evidence tending to show that the respondents accepted a proposition to exchange properties negotiated by the appellants. The respondents appear afterwards to have refused the exchange, of their mere will, without reason assigned. They probably thought it for their interest. And, as against the other party to the exchange, they may have had a right to do so. But having once accepted the proposition, which they afterwards rejected without fault of the appellants, respondents could not arbitrarily do so, so as to deprive the
Certain objections are urged here to the conveyance offered to the appellants upon the proposed exchange. It is sufficient to say here that these objections are not taken in the letter of the appellants refusing to consummate the exchange.
It is not said that the appellants had a right to recover. It is only said that there was evidezrce to go to the jury on which they might recover. On this point the nonsuit was clearly wrong.
For these reasons I concur in the judgment of this appeal.
By the Oowrt — Judgment reversed, and cause remanded for a new trial.