165 Wis. 97 | Wis. | 1917
Under the former practice the trial court no doubt correctly granted defendants’ motion for a nonsuit. Under the provisions of secs. 2830 and 28366, Stats., we think it was clearly the duty of the trial court to have permitted an amendment to the complaint to conform to the proofs and to have disregarded any variance between the proofs and the allegations of the complaint. As was said in Klaus v. Klaus, 162 Wis. 549, 156 N. W. 963, “The objection that the evidence and allegations of the complaint are at variance is. of no merit.”
In justice to the judge who presided, we must say that an examination of the record shows that he is chargeable with no blame in the matter; that plaintiffs were in court without • a consistent legal theory, and that plaintiffs’ counsel changed his position three times in an apparent effort to have the court try plaintiffs’ case. The court’s attention was not called to the statute in question and no authorities were cited so far as the record shows. The burden of administering justice, cannot be thrown entirely upon trial courts; they have 'a right to expect and to receive the aid of counsel. Notwithstanding, we think the law is plain and that no liti
Inasmuch as the construction of the clause of the contract relating to the payment of brokerage fees has been fully argued and submitted and inasmuch as there must be a new trial of this case, we think it our duty to construe the contract of May 5th. Since Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, it is the settled law of this state that if a person makes a contract with another for the benefit of a third person the latter may enforce it whether or not he has formally assented thereto, and that, such a contract having been made, neither one nor both of the immediate parties to the transaction can rescind the same or in any way interrupt or prejirdice the rights of the third party without his consent, unless the right to do so be reserved in the contract.
The contract of May 5th provides: “The party of the first part to pay Micek & Oo. [plaintiffs] three hundred dollars ($300). Party of the second part to pay Micek & Co. two hundred dollars ($200), and to be paid at the time of the closing of the said exchange.” It then provided: “All deeds to be passed and this negotiation to be closed within fifteen days from the date of this agreement.”
It was beyond the power of the parties to the contract of May 5th to impair or interrupt in any way the rights of the plaintiffs under the provisions of this contract.' So, far as the plaintiffs are concerned the contract was closed when the fifteen days had expired, and it would have been closed sooner if the exchange had been made sooner. Any attempt by the defendants and the purchaser, Wilson, to rescind the contract, or their refusal to carry it out for any reason whatever, cannot affect the rights of the plaintiffs. The contract specifies that the money shall be paid when the exchange is closed, and specifies the time with exactness for the closing of the exchange.
By the Court. — Judgment reversed, and cause remanded for a new trial.