Erbacher v. Seefeld

92 Wis. 350 | Wis. | 1896

Cassoday, C. J.

This action is brought by the plaintiffs, as partners, for services rendered by them, as such, to the defendant, in procuring a purchaser for the real estate described, and then owned by the defendant. The complaint alleges the employment and agreement to pay $800, being two per cent, commission upon the selling price of the land,which was $40,000, and the performance of the icontract on the part of the plaintiffs. The answer admits the original employment, but alleges nonperformance on the part of the plaintiffs. At the close of the trial the court directed a verdict in favor of the plaintiffs for $800, with interest from March 1, 1893.

It appears from the undisputed evidence that on or prior to December 17, 1892, the plaintiffs procured one Winkler to purchase the land described on terms satisfactory to the defendant on that day; that Winkler paid the defendant on that day $100, for which the defendant gave him a receipt reciting the terms of payment; that on January 30, 1893, Winkler and the defendant again met, by an arrangement with the plaintiffs, and entered into articles of agreement for the sale by the defendant to Winkler of the land in question, pursuant to the receipt, but the times fixed therein for making some of the payments were somewhat different; that in each $1,000 was to be paid down, and $5,000 March 1, 1893; that neither mentioned the plaintiffs, nor referred to their commissions nor any agreement between the defendant and the plaintiffs; that, at the time and place of executing the articles of agreement, the defendant exacted of the plaintiffs an agreement in writing, and thereupon dictated to the scrivener a written agreement, signed by one of the plaintiffs, to the effect that, in consideration of the extra time given on the first payment, the plaintiffs would take their commissions, amounting to $800, on account of such sale to Winkler, on March 1, 1893; that that was the only written agreement between the plaintiffs and the defendant respecting commissions..

There is no dispute as to the amount of the commissions to be paid. Of course, in the absence of any agreement as to the time of payment, they would have been due immediately upon securing a purchaser; hence, the defendant exacted the written agreement mentioned! The only defense attempted to be proved was to the effect that the plaintiffs were not only to wait for payment until the day when, by the terms of the articles of agreement, the $5,000 payment was to become due, but until it should in fact be actually paid, and that the scrivener failed to write the. agreement respecting commissions as the defendant dictated the same. The testimony offered to prove such defense, or some of it, was, as we think, properly excluded, as tending to contradict the written agreement so made. It was unnecessary that it should be signed by the defendant to be binding upon him. He accepted it, and that was enough to make it binding.

It follows that the verdict was properly directed in favor :of ■ the plaintiffs.

By the Oourt.— The judgment of the superior court of Milwaukee county is affirmed.