191 Wis. 166 | Wis. | 1926
The plaintiff contends that the judgment is erroneous: first, because the interest acquired in a cemetery lot is not an interest or estate in real estate; and second, that if such interest be considered as an interest or estate in real estate, the plaintiff was not a broker within the statutory definition employed in sec. 136.01, Stats., part of the chapter entitled “Wisconsin Real Estate Brokers Board.”
The material allegations of the complaint, after setting out the relationship of the parties and the capacities in which.they acted and matters of inducement, are:
“That said defendant Charles F. Bleinig, in behalf of said defendants Chas. F. Heinig Company and Pinelawn Cemetery Company, engaged this plaintiff, on or about the 10th day of June, 1922, in the city of Chicago, Illinois, to put on a sales campaign for the disposition of all of said cemetery lots, agreeing with this plaintiff upon the price each lot should be sold for and agreeing to pay this plaintiff as remuneration for his services seven and one-half per cent. (7j4 %) of the price of each lot to be sold under said plaintiff’s supervision, plaintiff to have the right to supervise the sale of all lots fh said cemetery.”
That, relying upon the promises of said' defendant Charles F. Heinig, plaintiff spent some time in the city of Chicago getting up advertising material;, that subsequently plaintiff came to Milwaukee, hired' salesmen, and organ
The material part of sec. 136.01 is as follows:
“(2) ‘Real-estate broker’ means any person, firm or corporation, not excluded by subsection (3) [relating to receivers, public officers, bankers, etc.] of this section, who, for another, and for commission money or other thing of value:
“(a) Sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of an interest or estate in real estate.”
Do the facts alleged bring the plaintiff within this definition of real-estate broker? Every intendment is to be taken in favor of the pleader, especially upon a demurrer ore tenus, and if the complaint, construed most favorably to the pleader, states any cause of action entitling the plaintiff to relief,, the demurrer should be overruled. It appears from the complaint that the plaintiff was engaged by the owners of certain cemetery lots to put on a sales campaign-for the disposition of these lots; that he was to have the right to supervise the sale, and that in the performance of his duties he spent time in getting his advertising material, hired salesmen, and organized a sales force. Does this amount to offering for sale or attempting to negotiate a sale of an interest in real estate, assuming for the purposes of this discussion that an'interest in a cemetery lot is an interest in real estate, a question which we do not now decide ? The character of the advertising material prepared and published does not appear from the complaint, nor is it
It is not necessary for us to determine now the nature of the interest which a person acquires by purchase of a lot in a cemetery. It is a difficult and vexed question upon which the courts are greatly divided. It is not necessary for us to name the existing relationship. Whether plaintiff was a servant employed to perform a particular service or an agent with power to bind his principal, or partly a servant and partly an agent, is immaterial. The performance of his contract did not bring him within the statute and his contract was therefore valid. ■ We do.not find it necessary to consider the appeal from the order.
By the Court. — The judgment appealed from is reversed, and cause remanded for further proceedings according to law. ■