60 Wis. 233 | Wis. | 1884
The learned counsel for the appellant, in a very elaborate argument, attempts to show that the plaintiff cannot maintain his action against the defendant, for the reason that, as he alleges, the evidence proves that the plaintiff committed a fraud upon the owners of the real estate purchased by the defendant, in this, that while he was pretending to act on behalf of the owners of the real estate in making a sale of their lands, he was in fact acting on behalf of himself and the defendant as purchasers. If it be admitted that the plaintiff -was guilty of fraud towards the owners of the lands sold, who have paid him a commission for his pretended assistance in making such sale, we are unable to see how such fraud can justify the defendant in withholding the $1,000 from the plaintiff. It seems clear to us that the defendant, under the proofs and the finding of the jury upon such proofs, stands in the same relation to the plaintiff as though the $1,000 had been first paid to him by the owners of the land in satisfaction of his commission's, and thereupon he had paid the money to the defendant in part payment for his interest in the land under the parol contract. It needs no argument to show that, had the money passed directly from the owners of the land to the plaintiff, in discharge of his claim for commissions, and had he then paid the same money to the defendant on a contract between himself and the defendant, the defendant could not refuse to account with the plaintiff foe it, either as a payment on the contract or upon an implied promise to. return it to the plaintiff if the contract was not carried out, on the ground that the plaintiff had fraudulently obtained it from the
Treating the $1,000 as paid by the plaintiff to the defendant upon the parol contract for the purchase of a quarter interest in the land, such payment was made upon a void contract, and plaintiff was, under the decisions of this court, entitled to recover the same of the defendant, upon demand of payment of the money so paid, though the defendant did not refuse to go on with the contract on his part. Brandeis v. Neustadtl, 13 Wis., 142; Thomas v. Sowards, 25 Wis., 631; Hooker v. Knab, 26 Wis., 511; W. W. U. P. Co. v. Shaw, 31 Wis., 655; Clark v. Davidson, 53 Wis., 317.
“ Where a contract is void b}7 the statute of frauds, and money is paid upon it which the party is entitled to. recover back, he cannot recover it back without making a demand, because otherwise the vendor might not know but the other party was going to take possession and fulfill the contract; but, the contract being void, when the party paying the money goes and demands it, that is notice that he wilLmot perform it, and then if the vendor refuses to pay, a cause of action at once arises to enable him to recover it back, with interest from thé time at seven per cent. If he does not refuse, he is to have a reasonable time to get the money and pay it. What is a reasonable time is a question of fact for you.
“I ought to say this, further, that in making the demand for the money it is not necessary that he should put it on the ground that the contract is void under the statute of frauds, but there must be such a reference to the money when the demand is made that the defendant should understand that it is the money paid on the contract which is void by the statute.”
These instructions, we think, are sufficiently favorable to the defendant, and.state the law correctly.
It is also insisted by the learned counsel for the appellant that the plaintiff ought not to be allowed to recover in this action, because he took from the defendant a written receipt, by the terms of which the defendant was to pay to the
The cas.e depends mainly upon questions of fact, which the jury have found against the defendant upon conflicting evidence, and their verdict is necessarily final. The court submitted the case to the jury with instructions to which there are no valid objections. The case seems to have been fairly tried, and we find no error in the record which would justify a reversal.
By the Gourt.— The judgment of the circuit court is affirmed.