Graham v. Lamp

174 Wis. 373 | Wis. | 1921

Vinje, J.

The circuit court disposed of the case on the ground that the contract failed to comply with sec. 2305m, Stats., in that it did not describe the real estate to be sold. Such statute requires every contract to pay commission for the sale of real estate to be in writing, and among other things to describe the real estate to be sold. The description in the body of the contract was as follows: “2 Cottages on this lot 49 x 126 ft. 5 R. Cottage Front Cottage; 5 R. Rear Cottage.” The contract begins: “Owner John Lamp. Listed by-. Address 1211 20th St. Milwaukee, Wis., June 11, 1919;” and on the back of the contract the following appeared: “Location, 1211 20th St. Size of lot, 49 x 126.” The civil court was of the opinion that the words “this lot” in the body of the contract referred to the number, 1211 20th St., at the beginning of the contract, and that this made the description definite enough. That such description was the one intended was shown by parol testimony. In Gifford v. Straub, 172 Wis. 396, 179 N. W. 600, the description was “My place,” and it was held to be sufficient where parol testimony made it definite and certain. It was there said: “The writing relied on to establish the contract need not describe the land which is subject to sale otherwise than by a reference therein to some extrinsic fact by means of which the land can be known with sufficient certainty;” citing a large number of cases. In Brown v. Marty, 172 Wis. 411, 179 N. W. 602, the description was, “Property owned by the first party described as follows: 200 acres in Sections 35 and 36, Town of Springdale, Dane Co., Wis.,” and it was held to be sufficient for the reasons stated in Gifford v. Straub, 172 Wis. 396, 179 N. W. 600. The description here is more definite than those in the cases mentioned, and the civil court correctly held that the address 1211 20th St., together, with the words “this lot” in the body of the contract, together with the parol evidence, described the property with sufficient certainty.

That parol or extrinsic evidence to identify the land is admissible is well established. Gifford v. Straub, supra, and cases cited.

It is next argued that the contract is void because its duration is not fixed with such definiteness as sec. 2305m requires, in that it is not to be terminated till the owner gives thirty days’ written notice. This contention was ruled adversely to respondent in Brown v. Marty, 172 Wis. 411, 179 N. W. 602, where it was held that a contract providing a method by which the duration can be definitely fixed complies with the statute. This contract does'so, namely, thirty days after written notice of termination is served.

The claim that the contract lacks mutuality has no basis in fact. It says: “In consideration of your agreement to list and your efforts to find a purchaser,” the owner agrees to give exclusive right of sale and to pay commission. We have here promise for. promise. But even if we did not have such promise expressed it would not be void for want of mutuality or for lack of a consideration where the broker makes a bona fide effort to sell. Greene v. Minn B. Co. 170 Wis. 597, 176 N. W. 239.

It appears that the defendant did not sign the contract personally but directed her daughter to sign her name for her, which was done in her presence. This made a signature binding upon defendant.

By the Court. — Judgment reversed, ánd cause remanded with directions to affirm the judgment of the civil court.