Tbis is an action upon contract to* recover an agent’s commission. Tbe contract pleaded was that the “defendant agreed to pay to the plaintiff the sum of five hundred dollars ($500) if said plaintiff would furnish to said defendant a customer who would purchase said property at a price to be agreed upon between said purchaser and said defendant.” Performance is averred in these terms:
“Plaintiff effected various negotiations between said defendant and said Piper Bros., which resulted in a sale of said property to said Piper Bros, for the sum of $19,000, which was the price agreeable to said defendant.” 0
The trial court found that plaintiff never produced a purchaser ready, able, and willing to pay a price that was acceptable to defendant; that prior to the sale of the property to Piper Bros, defendant revoked the plaintiff’s authority, and that he did not subsequently agree with plaintiff to accept. $19,000 for the property and direct the plaintiff to close the sale at that price; that the efforts of other agents than the plaintiff were the procuring cause of the sale.
The question presented is whether there is evidence to uphold such findings. Plaintiff’s evidence, if not controverted, made a prima facie case for recovery. But there was evidence to which the trial court might have given credence showing that the defendant was not the sole owner of the real estate in question; that one Kowley, a real-estate agent,, first brought the property to the notice of Piper Bros, and received from them an offer of $19,000 therefor, which he-communicated, to defendant and which the latter then refused. xifterwards the defendant placed the property in th'e hands of plaintiff for sale a.t $22,000, reduced this to $21,000, reduced this to $20,000, but never authorized the plaintiff to make a sale or procure a purchaser for less than
But it is contended by appellant that there is no contradiction of the "plaintiff’s testimony relating to what occurred between him and defendant at their last interview, substantially as follows: “This is Saturday, and Piper Bros, are pretty busy. You go and accept this nineteen on Monday from them.” It is true the defendant was not examined with reference to this particular conversation, but be did testify that tbe plaintiff was never authorized to sell tbe property for $19,000. “Tbe $20,000 talk was tbe last one. I never'offered it for less than $20,000 to any one. The very lowest figure that anybody ever had was $20,000” — and more of these general statements. Tbe court would bave been warranted in finding that this testimony related to the terms of defendant made prior to the final closing by Swen-son, who seems to bave secured tbe consent of tbe other joint owner or tenant in common as well as that of defendant to accept $19,000. It is true, as said in Oliver v. Katz, 131 Wis. 409, 111 N. W. 509, that where the contract is to procure a purchaser, and tbe purchaser was procured by tbe agent but refused to buy tbe property at the price then asked by the owner, tbe latter could not later and during the continuance of tbe. agency sell to tire purchaser thus procured at a lower price and thus avoid tbe payment'of commission.
By the Court. — The judgment of the circuit court is affirmed.