De Wolf v. Wisconsin Lakes Ice & Cartage Co.

KeewiN, J. The case turns upon the proper construction of the contract between plaintiff and defendant set up in the statement of facts. By this contract the plaintiff was- to be paid $600 upon execution of a lease about which negotiations were pending at'the time the contract was made. This lease was executed by the defendant to the Christianson Engineering Company as lessee and the $600 paid. The lease was for the term of ten years, and contained an option to the Chris-tianson Engineering Company, its successors and assigns-, to purchase. Under the lease and option the Christianson Engineering Company went into possession and made permanent improvements upon the property to the value of upwards of $150,000. The contract further provided: “And if, after the execution and acceptance of said lease at any time during the term thereof the Christianson Engineering Company, its successors or assigns, should become the purchaser of said real estate, the said John E. De Wolf shall, upon the execution and delivery by the Wisconsin Lahes Ice & Cariage Company of a deed of said real estate to the Chris-tianson Engineering Company, its successors or assigns, receive as a further and additional commission the sum of six hundred dollars ($600).” We think it clear from the contract that the intention of the parties was that $600 should be paid when the lease was executed and accepted by the lessee, and that plaintiff was to- receive $600 additional when the Christianson Engineering Company, its successors or assigns, should become the purchaser. When the contract to purchase was made the plaintiff became entitled to the additional $600, the language of the contract, “upon the execution and delivery,” etc., having reference to the time of payment of the $600. The plaintiff had performed his part of the contract when he procured the pur [243] ■chaser. It then became the duty of the defendant to mate the proper transfer. And whether the transfer was made direct-from defendant to the purchaser, or through mesne conveyances from the defendant, was wholly immaterial. The defendant was bound under the lease and option to make the transfer at any time during the life of the lease and option, and the purchasers from the defendant took the property subject to the lease and option. The conveyance from Nunne-rnacber and wife to the successors and assigns of the Christian-son Engineering Company was a transfer of the property in pursuance of the contract with the plaintiff, and the plaintiff became entitled to the additional $600. The defendant could not escape liability for the payment of commission by transferring the property to another or by putting it out of its power to perform its part of the contract Cook v. McCabe, 53 Wis. 250, 10 N. W. 507; Comstock v. Fraternal Acc. Asso. 116 Wis. 382, 93 N. W. 22; Magillv. Stoddard, 70 Wis. 75, 35 N. W. 346; Riemer v. Rice, 88 Wis. 16, 59 N. W. 450; C. Aultman & Co. v. Ritter, 81 Wis. 395, 51 N. W. 569; Barthell v. Peter, 88 Wis. 316, 60 N. W. 429; Brink v. Mitchell 135 Wis. 416, 116 N. W. 16. The contention of respondent is that under the terms of the -contract the commission was not earned until a deed from the defendant was executed and delivered to the Christianson Engineering Company, its successors and’ assigns. The construction contended for by respondent is more technical than substantial and cannot be regarded as the construction intended by the parties. It cannot be held that the plaintiff was responsible for failure of performance on the part of respondent. When the plaintiff procured the purchaser it was the duty of respondent to perform its part of the contract by the execution and delivery of the deed. Stress is placed upon the fact that while the contract provides for purchase by the Christianson Engineering Company, its successors and assigns, there is no provision for execution [244] and delivery of deed by the successors and assigns of defendant. The argument is ingenious but unsound. Tbe purchase by the Christianson Engineering Company, its successors or assigns, under the lease and option entitled it to a deed from the defendant, and the defendant could not avoid the performance of its contract so as to defeat payment of commission by placing the title to the property in its successors or assigns any more than it could avoid performance by refusing or failing to make the deed had it not parted with the title. It follows, therefore, that upon the facts stated in the complaint and admitted by the demurrer the complaint states a cause of action and the demurrer should have been overruled. By the Court. — The order sustaining the demurrer is reversed, and the cause remanded with directions to overrule the demurrer.