Harris v. McKinley

Mitchell, J. Action to recover the commission on the sale of defendants’ real estate situated in Wisconsin. The allegations of the complaint are that defendants employed the plaintiff as agent to procure a purchaser for the property, and that he procured such purchaser in the person of one Charles W. [201] Stewart, whom defendants accepted, and with whom they entered into a contract for the sale of the property. The answer, after denying the allegations of the complaint, alleges, in substance, that they employed, not plaintiff, but the firm of Harris Bros, (of which the plaintiff was a member), and that the terms of the contract were that the firm was not to have any commission unless a sale was consummated by a conveyance of the property and the payment of the purchase money; that no sale ever was consummated, although defendants have always been ready, willing, and able on their part. The answer also sets up a written agreement (Exhibit A) to sell, which the defendants had signed, and delivered, as they allege, to Harris Bros. Under the evidence the verdict is conclusive that the contract of employment was with plaintiff, and that its terms were as alleged in the complaint. The case was tried and submitted to the jury in the court below, and was argued in. this court by both parties, upon the theory that to entitle plaintiff to his commission he must have procured the customer to enter into a binding and enforceable contract with defendants for the purchase of the property; and on the facts of the case this was undoubtedly correct, for the defendants intrusted to plaintiff the entire matter of closing the contract with the purchaser, whom they never saw. Charles W. Stewart never signed Exhibit A or any other memorandum. It was assumed by the trial court (on what authority is not stated) that, under the decisions of this court, such a contract would not be binding on the purchaser unless signed.by him; and the case was submitted to the jury on the theory (the correctness of which is not questioned by either party) that the transaction was governed by the law of Wisconsin, and that in that state, if such a contract is signed by the vendor, and accepted and adopted by the vendee, it is binding and enforceable against the latter, although not signed by him. It is not important to consider whether the court was right in his view of the law of this state, for the law of Wisconsin is unquestionably as stated. Vilas v. Dickinson, 13 Wis. 488; Lowber v. Connit, 36 Wis. 176; Hutchinson v. Chicago & N. W. Railway Co., 37 Wis. 600; Schweitzer v. Connor, 57 Wis. 179, (14 N W. 922.) In the present case there was not a particle of evidence to show [202] a parol acceptance of the contract by the vendee until after plaintiff’s connection with the transaction had terminated; and there is no evidence of any authority on the part of either plaintiff or Moses Stewart to make any such contract in his behalf. The only evidence relied on to show an acceptance is that, some weeks after the contract came into the hands of Moses Stewart, Charles W. Stewart asked a clerk in the office of the former for the contract (for what purpose does not appear), and that, in pursuance of such request the clerk gave it to him; and the further fact (which came out incidentally in the testimony of one of the defendants) that Charles W. Stewart had brought suit in Wisconsin against them to recover back the $800 earnest money paid by Moses Stewart at the time of the delivery of Exhibit A to him. It is certainly at least doubtful whether this very meager and equivocal evidence would have warranted the jury in finding that Charles W. Stewart had accepted and adopted the contract so as to make it binding on him. Clearly, it was not so strong as to require any such finding; the very most that could be claimed for it being that it made a case for the jury. In this state of the evidence the court instructed the jury, in substance, that if they believed from the evidence that the transaction for the purchase of the property was really between defendants and Moses Stewart, and that the latter was the real principal, but used the name of Charles W. Stewart as the person to whom the contract should run,and that he (Moses) paid the earnest money, and accepted and adopted the contract as his own, although, running to Charles W., then it was a binding and enforceable contract against him. In other words, it was left to the jury, although they might find that Charles W. Stewart had never become bound by the contract, to determine whether Moses Stewart had not accepted it so as to bind him. How, under any circumstances, Moses Stewart could have accepted, so as to be bound, a contract executed to another party, and which he himself had declined to enter into, it is difficult to see. The contract was one which was required, so far at least as defendants were concerned, to be in writing, and by that writing the only person to whom they bound themselves was Charles W. Stewart. Moses Stewart could not compel a conveyance. This instruction was er [203] roneous, and was clearly prejudicial, because the jury might have found for the plaintiff on the ground that he had procured Moses Stewart to enter into a binding and enforceable contract with defendants for the purchase of the land. For this reason, if no other, a new trial must be granted. Order reversed. Bock, J., absent, sick, took no part. (Opinion published 58 N. W. 991.)