208 Wis. 163 | Wis. | 1932
The plaintiff is a licensed real-estate broker. Pursuant to an oral understanding between the defendant Capitol & Teutonia Company, the plaintiff, Karl Elbinger, and his associate, Herbert Baer, said Elbinger and Baer negotiated a lease of certain premises owned by the defendant. These services were not rendered pursuant to a written contract, as required by sec. 240.10, Stats., and it is conceded that an action by the brokers could not have been maintained to recover the value of the. brokerage services. However, after the transaction was consummated, the defendant voluntarily settled with the brokers, paying them $200 in cash and giving to each of them its promissory note in the sum of $146. This action is brought to recover on the promissory note given by the defendant to the plaintiff, and the defense is that there was no consideration for the note and it is void. The contention is that as the brokers could not have recovered on their original contract because it was not in writing as required by the provisions of sec. 240.10, the voluntary promise to pay, made after the services were performed, is without any consideration and unenforceable.
The plaintiff contends that he rendered valuable services to the defendant of which it enjoyed the benefit, and that, while he could not have recovered on the original contract because declared void by statute, nevertheless the fact that he rendered services of value to the defendant, which services were not against public policy, in a transaction not involving moral turpitude, a moral obligation arose on the part of the defendant to pay therefor, which obligation constituted a good consideration for the subsequent and independent promise of the defendant to pay. We recently had under consideration the question of what constitutes a good
Sec. 240.10, Stats., was enacted to curb the tendency of real-estate brokers to impose upon their clients and to prevent frauds and perjuries of which such transactions seemed to afford a prolific source. If a real-estate broker would recover his commission upon his original contract, the contract must be in compliance with sec. 240.10. However, that section has accomplished its purpose when it relieves the owner of legal liability under a contract resting in parol. When the contract is completed, when the services of which the owner has received the benefit have been performed, he is at liberty to say how much he will pay the broker for those services. He may pay him therefor in cash and, when he does so, such payment may not be recovered by him. He
By the Cotirt. — Judgment affirmed.