Greene v. Minn Billiard Co.

170 Wis. 597 | Wis. | 1920

Vinje, J.

The defendant urges that since the giving oi; an exclusive agency to sell does not debar the owner from selling within the life of the contract to one not believed to have been procured by the agent (Greene v. American M. Co. 153 Wis. 216, 140 N. W. 1130); since the giving of an exclusive sale is similarly construed in Roberts v. Harrington, 168 Wis. 217, 169 N. W. 603; and since this contract, like that in the last case cited, is unilateral and without consideration at the time it was entered into, it should receive a construction like that of the Roberts Case. In that case the crucial question was, Had the owner parted with authority to sell within the life of the contract? and it was held that he had not because the language of the contract was not specific enough to negative such right of the owner. That it could be negatived was of - course taken for granted. The situation, there depended upon the construction of the contract alone. That being construed, there was no conflict' as to the(well known principles that apply to such a contract. The construction of the contract related to the time of its execution, and the fact as to whether or not a consideration passed was deemed material as bearing upon the construction that should be given it; and it was pointed out that, since no consideration there passed from agent to owner, the contract would not upon doubtful language be con-, strued against the right of the owner to sell — that the language barring such right must be clear and unequivocal. It was recognized that at the time the action was brought a consideration had moved from the agent because it was in evidence that he had spent time and money in trying to sell the property. But since at the time the contract was executed it depended upon the will of the agent whether a consideration should ever move from him, it was said that the situation affected the construction to be given doubtful language in the contract.

Here the question is not, as in the Roberts Case, whether the owner has parted with power to sell within the life of the contract, but whether he has agreed to pay plaintiff a commission if property is sold by any one within its life. The language in the contract, “I agree to pay a commission to you of three per cent, of the sale price if the property is sold or exchanged before this agreement is terminated, regardless of who negotiates the sale,” seems both clear and' specific and seems to contemplate that others than the agent may negotiate the sale, and is equivalent to saying that if a sale or exchange of my property takes place within the. life of the contract I will pay you three per cent, of the purchase price — a perfectly legal agreement. The argument by defendant, that the words “regardless of who negotiates the sale” do not include a situation where the purchaser is not procured by the agent, we regard as givingToo narrow a meaning to them. They are broad enough to cover the case where the purchaser is procured by the owner or anyone else.

Construction by other courts of like or similar contracts is to the same effect. See Novakovich v. Union T. Co. 89 Ark. 412, 117 S. W. 246; Crane v. McCormick, 92 Cal. 176, 28 Pac. 222; Metcalf v. Kent, 104 Iowa, 487, 73 N. W. 1037; Chapin v. Bridges, 116 Mass. 105; Cook v. Blake, 98 Mich. 389, 57 N. W. 249; Mercantile T. Co. v. Lamar, 148 Mo. App. 353, 128 S. W. 20; Howard & Brown R. Co. v. Barnett (Mo. App.) 206 S. W. 417; Stevenson Co. v. Oppenheimer, 91 N. J. Law, 479, 104 Atl. 88.

The complaint alleges that in reliance upon the agreement plaintiff spent time and money in an effort to sell the property. This shows a consideration moving since the contract was executed and before suit. That is sufficient to sustain an action so far as consideration is concerned. It may be that the consideration did not benefit the defendant, but it is enough that it was a detriment to plaintiff. John A. Tolman & Co. v. Infusina, ante, p. 433, 175 N. W. 916.

By the Court. — Order affirmed.