| Wis. | Feb 24, 1891
Were the facts contained in the foregoing statement all there is of the case, there would be no doubt that the plaintiff, Russell, through Malick, fully earned the com
As soon as Youmans, who afterwards purchased the lands, saw Malick’s advertisement in the Milwaukee Sentinel, and on February 12, 1887, he telegraphed Malick at Stevens Point for descriptions of the lands, terms of sale, and for an option, and asking him if he would give the option at the price of $30,000. Malick answered this telegram about a month later, stating price at $37,500. Youmans replied March 15th, again requesting option, lowest price, etc., and expressing an intention to examine the lands. Malick then sent him the plats thereof, but told him there was an outstanding option. This option, which was in writing signed-by McGregor, was given to one Cooledge, and, by its terms, would expire March 29th. Cooledge surrendered his option before it expired, and Andrae had it. About a week before it would have expired, Malick told Andrae he had found a customer for the lands, but had forgotten his name, and that such customer wanted an option on them. Thereupon Andrae, of his own motion, struck out Cooledge’s name where it first occurred in the option, and inserted Malick’s name in place of it, leaving Cooledge’s name therein in two other places', and delivered the option to Malick, telling him that it Avould answer the required purpose until an extension thereof could be procured from McGregor, to whom he made application therefor. The instrument as thus altered, after giving Malick the refusal of the lands, reads as follows: “ The said Cooledge can buy the said lands at any time within thirty-two days from this date, and I will cause a good and sufficient deed, free from all legal incumbrances, to be executed to the said Cooledge
The learned circuit judge granted the nonsuit on the sole ground that, by accepting the option, Malick changed his position from that of an agent to sell the lands to a proposed purchaser thereof, and thus defeated the right of his principal, Mv,ssell, to recover the agreed compensation for finding a purchaser. We think this an erroneous ruling, for several reasons: (1) The option was funcfais officio by reason of its surrender by Cooledge, and probably conferred no rights upon Malick for that reason. (2) It does not appear that Andrae had any authority from McGregor to grant an option on the lands. Indeed, it was understood by both Malick and Andrae that the latter had not, for they then agreed to send to McGregor for an extension thereof, and did so, which would not have been done had they supposed Ao%drae had power to give an option. (3) The option, in its mutilated condition, could not have been enforced, for it gave what is termed therein a refusal of the lands to Malick, and gave all the fruits thereof to Cooledge. It could not have been enforced, were it otherwise binding, without a reformation thereof, and, on the facts here proved, no court would have reformed it at the suit of Malick, but only at the suit of Youmans, for whose benefit it was intended. (4) The testimony is undisputed that it was given for the sole purpose of facilitating the sale of the lands to Youmans. Malick had no idea of purchasing the lands, and Andrae did not suppose that he had. There is no legal objection to the admission of parol testimony to show the true character of the transaction. Agents are frequently invested by their principals with the title to property, for convenience in making sales thereof, and we are aware of no rule of law which excludes parol testimony to show the purpose of the transaction when proof of it becomes necessary.
The learned counsel for the defendant argued with much earnestness and ability that, conceding the court gave an unsound reason for granting the nonsuit, there still remains a valid reason why it should not be disturbed. The price fixed by McGregor for the whole of his land was $30,000. Andrae informed Bussell that McGregor desired no larger price should be demanded, and instructed him accordingly. Malick violated this instruction, and asked Youmans $3Y,50Q for the lands. Because he did so, counsel maintains that Bussell cannot recover against Andrae any commissions on the sale, notwithstanding he, through Malick, found a purchaser. Assuming, for the purposes of the case, that an agent to sell property,-who violates his instructions, cannot recover commissions, wé think the rule has no application here. Had Andrae brought an action against McGregor to recover his commissions, the rule would have been applicable, and Malick’s violation of McGregor’s instruction would be imputed to Andrae, and would defeat a recovery. But such violated instruction was the instruction of McGregor, not Andrae, and McGregor alone was liable to be injured by its violation. He alone was in a position to assert it as a defense to any claim for commissions. It was also competent for him to waive the violation of his instruction, and he did waive it by paying Andrae the stipulated commission which Bussell, through Malick, had earned for him. Such waiver binds Andrae, Bussell, and Malick. It estops Andrae from asserting such violation of McGregor’s instruction as a defense to this action, and would estop Bussell, after he receives his commission, from asserting it in an action brought by Malick to recover his stipulated share of such commission. The opposite rule would allow Andrae to retain money received by him for
. The judgment of the circuit court must be reversed, and the cause will he remanded for a new trial.
By the Court.—Ordered accordingly.