Henschell v. J. L. Gates Land Co.

SiebecKee, J. Erom the foregoing statement of facts it is apparent that the agency contract of Wade and MeComb was an engagement by them to find a purchaser, and to sell the defendant’s lands at a stated price, the terms of sale to be arranged and agreed upon by the defendant and such purchaser. The inquiry, therefore, is, Did these real-estate agents execute this agreement by securing a purchaser of any specific real-estate at the stipulated price upon terms mutually acceptable to the defendant and the purchaser? This inquiry must be answered in the negative. It clearly appears that all the negotiations prior to January 3, 1901, were preliminary steps to effect a purchase and sale of lands in Price county upon terms and conditions to be arranged and agreed to by the defendant and the prospective purchasers. It is not disputed, but that the agents under the agency contract were required to procure a purchaser ready, able, and willing to buy at the price defendant demanded for such quantities as might be agreed between defendant and purchaser and upon such terms and conditions as would be acceptable to buyer and seller. Under these arrangements execution of the agency agreement required that the proposed purchasers should in fact select lands embraced in the agency and be ready, willing, and able to consummate the purchase by accepting a transfer of such lands as were agreed upon by them and defendant upon the terms mutually agreed to by both parties to the contract. The contention of the plaintiff is that this was accomplished by the transactions which merged in the contract of January 3,1901, and that the commissions are therefore due him. This claim is based on the grounds that this agreement of January 3d is [149] a sale of 25,000 acres of land situated in specified townships in Price county, and that the defendant is in default under the contract by reason of its inability to perform the agreement to convey title to the quantity of land embraced in this contract. Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074. Tbe provisions of the contract have been stated heretofore. The evidence shows that the provisions of the contract were agreed upon in the negotiations between J. L. Gates, as president of the defendant company, and S. J. Johnson, one of the purchasers, at their meeting in Milwaukee January 3, 1901, •and that the contract was signed by the defendant’s president .and secretary and by Mr. Johnson. The contract was to be ■signed by the other purchaser, Mr. Thompson, at Sioux City, Iowa. It is manifest from the facts shown that Mr. Johnson was to satisfy himself of defendant’s title to the lands in the specified townships before the agreement was to be effective between the parties, and that upon examination of the record titles to the lands he was dissatisfied therewith, and instructed his associate, Mr. Thompson, not to sign and execute the writing. Mr. Thompson thereupon refused to sign it. Mr. Johnson then declared to the secretary of the defendant company that they would not purchase the lands, and, upon his demand, his check, given defendant as part consideration for this agreement, was returned to him. This closed the transaction. From these facts it is manifest that the parties at no time treated the agreement as a consummated purchase and sale of the lands embraced therein. The various steps of the negotiations and transactions, up to the point of refusal of Mr. Johnson to proceed with the matter, indicate that the parties understood that the agreement of January 3d was not to be effective until Mr. Johnson had satisfied himself of the title to the land and Mr. Thompson had approved and signed it, which he confessedly never did. The plaintiff must also fail in his contention that the con [150] tract of January 3d was in itself a fulfilment of the agency contract with the defendant. He asserts that the provisions of this agreement having been assented to by the parties thereto shows that purchasers had been furnished who were ready, able, and willing to buy the quantity of land listed with Mr. Wade and Mr. McOomb at the price specified in the agency agreement. This wholly omits consideration of the essential fact that no commission was due for an agent’s service until the proposed purchasers had actually assented to and accepted the terms of sale and purchase as proposed by the defendant. This, we have seen, was never effected by the transaction proven. Upon these considerations it follows that the court’s direction of a verdict for the defendant was correct, and that the judgment of dismissal of the complaint and for costs was properly awarded. By the Court. — Judgment affirmed.