131 Wis. 409 | Wis. | 1907
Quoting from appellant’s brief:
“On December 8th Oliver, in. company with Erost, while •on their way to look at other farms, met the defendant Katz -on the road, and Oliver asked him if his farm was for sale. Defendant told Oliver that it was and fixed the price at '$4,500, of which $2,000 was to be paid in cash by the pur■chaser, plaintiffs to receive five per cent, commission. The -same day the defendant limited the time within which the plaintiffs could sell to one week. These terms are "undisputed.”
If this was an accurate version of the facts in this case the assignments of error 1 to 4 above enumerated would probably be fatal to the judgment; but we do not understand the facts in that way, nor did the trial court so understand them. .When a jury has returned a general verdict upon controverted facts relative to an oral contract, for the purpose of assigning and considering errors it must be taken that the facts are those in evidence which are most favorable to sustain the verdict of the jury. Erom this viewpoint we are unable to declare that the time within which the plaintiffs could sell was limited to one week. We are unable to declare that the terms of the commission contract were undisputed. In the first interview on December 8th, between the plaintiff Oliver and defendant, the testimony of said plaintiff is, on this point, that he asked the defendant what amount of commission .the latter would give if he, the plaintiff, would procure a buyer, and the def-iendan! said he would allow plaintiff five per cent. This was •a contract to procure a buyer to' whom the defendant would be willing to sell, the defendant having control of the amount of purchase money and the terms of sale. At a subsequent interview on the same day when the prospective buyer, Erost, was urged to conclude the purchase from Katz, he insisted upon first consulting with his wife and having more time, where
The correspondence between the plaintiffs and defendant, the letter of December 19th in which the plaintiffs informed the defendant that Mr. Frost would not buy now, seems to us to be fairly capable of the construction no doubt given to it by the jury, namely: that it was for the purpose of giving Mr. Katz an opportunity to sell to his prospective Milwaukee purchaser and so not cause him to> lose the sale of his farm; but that in case he did not sell the plaintiffs were not to cease their efforts to procure a purchaser, either Mr. Frost or some one else. There being evidence before the jury that after the writing of this letter an employee of the plaintiffs met Mr. Frost and urged him to proceed with the purchase, and that later and on January 2d following Mr. Frost did go up to Wood county and close out the purchase, the jury were justified in inferring therefrom that the plaintiffs did procure a purchaser upon terms satisfactory to the defendant and within a reasonable time. It was therefore entirely proper for the court below to deny the motion for a nonsuit, to deny the motion to direct a verdict, 'and to charge the jury that:
“To-entitle the plaintiffs to recover it must affirmatively appear to the satisfaction of your minds that the purchase by Frost was procured to be made solely by the efforts of the plaintiffs and within the time originally agreed upon, if any limit of time was actually made by the defendant, or within such time as plaintiffs were reasonably justified in believing from defendant’s acts and communications with them they were authorized to continue their efforts to obtain a purchaser, if you shall find from the evidence that defendant^ originally limited the said time to one week, but subsequently by his acts,*415 conversation, and correspondence, or either of them, gave plaintiffs reasonably to understand that he would accept such purchaser within a reasonable time without regard to the previous limitation thereof to one week, if you find that such limitation of one week was in fact a part of the original agreement of the parties. If there was in fact no express limitation of time agreed upon, then the plaintiffs were entitled to a reasonable time in which to procure a purchaser.”
This, upon our construction of the evidence, is the true theory upon which the case should have been submitted to the jury, and it renders the criticisms of the charge of the court below and the assignments of error thereon by the appellant unavailing upon this appeal.
Upon the trial the purchaser, Erost, as a witness was asked what was the effect of the recommendation of one Mr. Bean on Erost’s determination as to whether to purchase this farm or not. The witness answered: “Well, I thought if he said not to take it that I wouldn’t.” This answer was stricken out and exception to that ruling preserved, and it is now assigned as error. Whether or not the plaintiffs’ efforts were the procuring cause of the sale to Erost by Katz is not proved or disproved by evidence that Erost also sought the counsel of a third person and had resolved not to buy the farm unless this third person also approved of the purchase. The ruling was proper.
Einding no error in the record the judgment of the court below must be affirmed.
By the Court. — The judgment of the court below is affirmed.