Phelps v. Monroe

| Wis. | Dec 4, 1917

Maeshall, J.

Several matters are referred to in the briefs of counsel which we do not deem necessary to discuss. As indicated in the statement, the consummation of the commission contract called for an exchange of deeds. It provides that the commission should be paid after the deeds upon the exchange of property were made and delivered. That obviously called for a deed on appellant’s part conveying an unincumbered title to his property. The evidence is undisputed that he did not do that and was.unable to do so.

Why the court submitted the third question is not perceived. There was no evidence nor claim that the contract with Olerkin was not carried out through the fault of re: spondent. - Therefore the court very properly changed the answer to the contrary in accordance with the evidence. If' the exchange of deeds was prevented through the fault of appellant, respondent having fully performed, then the want of'.' such exchange was no defense to respondent’s claim. That, seems too clear to require discussion. Whether appellant-was guilty of such fault and whether Olerkin waived it by accepting the defective deed, might well have been submitted to the jury. No request was made for such submission of' either such matters, and they were found by the court in favor • of respondent, which it was competent to do under sec. 2858m, Stats. The findings in respect to such matters areas conclusive as if they had been made by the jury. In that situation it seems clear that respondent was entitled to judgment, having done everything he was required to do. Appellant could not legally or morally shield himself from liability for the agreed commission by pleading or proving, or having proved, his own delinquency.

It has been suggested that since the exchange of deeds was-made a prerequisite to payment of the commission, it makes-no difference why such exchange was prevented. That does-not seem sound. By necessary inference, since appellant agreed to give a perfect title, it must be that the understanding between him and respondent was that he could and would do so and not induce respondent to perform on his part and then claim a failure to earn the commission by reason of his own fault.

By the Court. — The judgment is affirmed.