Stearns v. Jennings

128 Wis. 379 | Wis. | 1906

Cassoday, O. J.

The recovery by the plaintiffs against the defendant can be sustained, if at all, only on the ground that they were entitled by the terms of the contract to a commission of two per cent, of the sum of $1,800 offered by the purchaser found by them for lots 6, 7, and 8. This must be so, because tbe complaint is based upon tbe contract, and tbe cause of action therein alleged is for a commission wbicb it is claimed tbe defendant agreed to pay by tbe express terms of tbe contract. There is no claim that at tbe time of finding tbe purchaser tbe contract bad been changed or modified in any particular, and there is no attempt to reform tbe contract. On tbe contrary, it was stipulated by tbe parties that at that time tbe contract bad not been rescinded. There is no pretense that tbe plaintiffs recovered by virtue of any agreement except tbe one embodied in tbe contract. Tbe denial in tbe answer put in issue tbe right of tbe plaintiffs to recover under tbe contract. Tbe decision of tbe case must turn upon tbe construction to be given to tbe written contract, tbe essential portions of wbicb are embodied in tbe findings of tbe court above set forth and need not be here repeated.

To appreciate tbe significance of tbe contract it may be well to understand not only tbe language employed but also tbe situation of tbe premises. Tbe eight lots mentioned in tbe findings, taken together and as a whole, were bounded on tbe north by George street, on tbe west by Adams street, on the south by Tallman street, and on the east by “outlot 36” mentioned in tbe second and seventh findings. Lots 1, 2, and 3, numbered from tbe east to tbe west, front to tbe north on George street. Lots 6, 7, and 8, numbered from tbe west to tbe east, front to tbe south on Tallman street. Lots 4 and 5 are between tbe two groups of lots mentioned, and both front to tbe west.on Adams street. Lot 4 is bounded on tbe north by lots 1, 2, and 3, and' on tbe south by lot 5; and lot 5 is bounded on tbe north by lot 4 and on tbe south by lots 6, 7, and 8. Tbe defendant’s bouse is situated on tbe line between lots 4 and 5, and fronts west on Adams street, and her barn is situated on lot 8. There was no authority in tbe contract for selling any of tbe eight lots mentioned, except in groups. Tbe plaintiffs were thereby authorized to sell “lots 1, 2, and 3, taken as a whole,” for tbe sum therein named, or lots 2 and 3 for the sum therein named, but there was no price named and no authority given to sell lot 1 alone. So the plaintiffs were thereby authorized to sell “lots 4 and 5” together, upon which the defendant resided, for the sum therein named. So they were thereby authorized to sell “lots 6, 7, and 8, taken as a whole,” for the sum -therein named; or the south half of those three lots, or the north half of those three lots, for the sums respectively therein mentioned. Following. such authority in the contract is this significant stipulation therein: “The lots to be sold only in the order they are enumerated above.” This language is plain, and effect must be given to it if possible. It is very evident from the language thus employed that the purpose was not to give authority to sell the homestead while lots 1, 2, and 3, taken as a whole, or at least 2 and 3, remained unsold. So the manifest purpose was not to allow the sale of 6, 7, and 8 as a whole, or the north or south half thereof, while the homestead remained unsold. True, the defendant agreed in and by the contract to pay to the plaintiffs, “as their commission and compensation for finding the purchaser for said real estate, or a pari thereof, two per cent, of the sum of any sale.” But this manifestly means “any sale” thus authorized by the contract, and not any sale made in violation of such express stipulation in the contract. We find no ambiguity, much less repugnancy, in the provisions of the contract thus referred to. The same is true in respect to the provision of the contract reserving to the defendant the right to “sell or exchange said real estate for the full value” therein “named, without any assistance, directly or indirectly, from” the plaintiffs, and without paying them any commission or compensation on account of such sale or exchange made by the defendant herself. The sale by the defendant of the “acre on the east side of outlot 36” was sanctioned by the trial court under the provision of the contract last referred to. True, the trial court found that the defendant’s refusal to accept tlie written offer made by Gfapen to purchase lots 6, 7, and 8, and pay therefor $1,800, was not made because of the fact that lots 1, 2, 3, 4, and 5 had not been sold and were then unsold. But such failure of the defendant to reject such offer on that ground did not give to the plaintiffs a right of action under the contract in violation of the express terms of the contract.

"We must hold that by the express stipulation in the contract the plaintiffs had no authority to sell lots 6, 7, and 8 while lots 1, 2, 3, 4, and 5 remained unsold; and hence that the plaintiffs have failed to prove any cause of action against defendant.

By the Court.- — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the complaint.