90 Wis. 434 | Wis. | 1895
It is conceded that the verdict is against the plaintiff so far as his claim for $200 commission on the sale of the schooner Helena is concerned, and hence that branch of the case requires no further consideration.
Most of the errors assigned are based upon the theory that the agreement of the defendant to pay the plaintiff a commission of $2,500 for obtaining a purchaser or purchasers or forming a syndicate to purchase and the purchasing of the dry dock property belonging to the Wolf & Davidson Dry Dock Company, of which the defendant was at the time a very large stockholder and the president and managing officer, was merged in and superseded by the written agreement entered into by the plaintiff and the dry dock company, October 29, 1891, wherein the plaintiff in terms agreed “ to pay or cause to be paid ” to that company, its successors or assigns, $237,500, at the times and in the manner therein mentioned, for the dry dock property. The contract of October 29,1891, contained a clause to the effect that the plaintiff was to hold the premises from the date thereof as the tenant at sufferance of the company, subject to be removed as tenant at will holding over in case of any default. By deed executed December 14,1891, the dry dock company conveyed that property to the plaintiff, and that deed was recorded December 28,1891. By deed executed and recorded
The facts in the record bring the case squarely within the principles of law stated in the opinion of Mr. Justice Winslow in Riemer v. Rice, 88 Wis. 16. The conclusion there reached, as stated in the syllabus, is that “ a written option to purchase land does not necessarily supersede a prior oral contract of agency between the same parties for the sale of the same land on commission, whether the option be regarded as an independent contract or merely as a writing to-be used by the agent to show his authority to make a sale; and in either case the contract of agency may be shown by parol.” That conclusion was only reached after very careful consideration, and we have no disposition to renew the discussion. It follows that the numerous objections to the admission of such evidence were properly overruled, and the numerous requests to instruct the jury, to the effect that the law applicable was different than thus held, were properly refused.
The defendant knew that the plaintiff was unable personally to buy the property, and that he intended to associate others with him in some way in order to make the purchase.
There was no error in refusing the defendant’s request to allow the jury to take to their room the several contracts, deeds, and bill of sale offered in evidence by the defendant. The trial court must necessarily have a very broad discretion in such matters, and in the ruling made we find no abuse of it.
The court charged the jury to the effect that, if they found from the evidence and the law given them in the charge that the plaintiff was entitled to the commission of $2,500, then they were at liberty to allow him interest thereon from October 29,1891. In computing such interest it is conceded that the jury, by some inadvertence, made the amount $62.94 too large, and the plaintiff now offers to remit that amount. But, under the well-established practice and rule of this court, the judgment is reversed, and the cause is remanded for a new trial, subject, however, to an option on the plaintiff’s part to remit such excess and take judgment for the balance. Supreme Court Rule XXXII.
By the Oowt.— Ordered accordingly.
