Mikkelson v. Faber

195 Wis. 64 | Wis. | 1928

Doerfler, J.

The record discloses that there is ample testimony to support the above findings. It is, however, argued by defendant’s counsel that the plaintiffs cannot recover a commission, for the reason that the only price expressed in the agreement is the sum of $7,200, and that with the exception of such price the amount for which the property may be sold is not definitely fixed, as required by sec. 240.10 of the Statutes.

It may be conceded that unless the property is sold for $7,200 the agreement does not fix definitely in dollars the amount of the sale price; but it does provide a basis upon which a commission may be definitely computed, and this answers the provisions of the statute and complies with the purpose for which it was enacted. Gifford v. Straub, 172 Wis. 396, 400, 179 N. W. 600.

It is conceded by the parties that at all times mentioned in the complaint the property in question was owned by defendant’s wife, and not by the defendant. The-undisputed evidence in the case establishes the fact that the defendant notified Mr. Bohn, one of the plaintiffs, prior to the time that the exclusive sales contract was executed, that the defendant was not the owner of the property, but that the same belonged to his wife. Notwithstanding such ownership, the defendant entered into the written contract above referred to, in his own name. In other words, in consideration of the procurement of a purchaser for the property in question, on the terms of the agreement, he, the defendant, promised and agreed to pay a stipulated commission. Upon the performance of the plaintiffs’ contract, therefore, a commission accrued to the plaintiffs, based upon the actual, sale price of the property. 9 Corp. Jur. p. 586 and note 93; Id. p. 587 and note 2; Buroff v. Bergmann, 170 Wis. 316, 174 N. W. 901; Roberts v. Goodlad, 167 Wis. 318, 166 N. W. 646; Mackenzie v. Staudenmayer, 175 Wis. 373, 185 N. W. 286.

In the judgment of the civil court and of the circuit court the commissions were computed upon the sum of $7,200 instead of $6,740. The judgment should therefore be reduced to the sum of $337 plus the interest. Inasmuch as the defendant’s counsel omitted to call the trial court’s attention to the clerical error in due time, plaintiffs are entitled to costs.

Defendant’s counsel called our attention to the death of their client pending this appeal, and that an administratrix was appointed for his estate. It is therefore ordered that the administratrix is substituted for the defendant herein.

By the Court. — It is ordered that the judgment of the circuit court be modified in accordance with this opinion, and, as so modified, affirmed.