Delaplaine v. Turnlet

Cole, J. We think the nonsuit in this case was improperly granted. It is not necessary now positively to decide whether or not the plaintiffs could recover their commissions on the trade made with Parker; but surely they were entitled to recover something for their services in taking charge of the property, looking after it, and advertising it for sale. The correspondence shows that they were to be paid the actual expenses of advertising, and at the rate of $25 per annum for services in caring for the property, even if no sale was effected. And we can see no difficulty in the way of their recovering on that claim under the complaint. It is suggested that the action is upon a special contract, and that the plaintiffs were not entitled to recover upon a quantum, meruit, under the complaint. We do not think this position well taken. The complaint states fully the facts constituting the cause of action. We are inclined to think, also, that a jury might properly have found, upon the evidence, that the plaintiffs were entitled to recover the commissions claimed. But this question is purposely left undecided until the defendants produce their evidence. The rule of law, as laid down by this court, applicable to this class of cases is, “ that a broker employed to make a sale at a price satisfactory to the seller, is entitled to his commissions when he produces a party who makes the purchase. And it is in general enough, in such a case, that the broker produces a party ready to make the purchase at a satisfactory price; and the principal cannot relieve himself from his liability by capricious refusal to consummate the sale, or 42 by a voluntary act of bis own disabling him from performance.” DixoN, O. J., in Stewart v. Mather, 32 Wis., 344-349. Did the plaintiffs bring themselves within this rule? There was evidence sufficient to go to the jury upon that question. True, the sale to Parker was not consummated; but was the trade broken off or prevented by the misconduct of the defendants? The case should have gone to the jury upon this or the other question, at least. The judgment of the circuit court must be reversed, and the cause remanded for a new trial.