Meldrum v. Southwick-Sellers Land Co.

Timxik, J. This case presents some fairly difficult questions. It would seem that Mr. Sherry, from the early part of March, 1911, until the closing up of the transaction on November 21, 1911, entertained a persistent desire to purchase this land if he could get it at his price. It also seems that defendant during this time was actuated by a persistent desire to sell this land at its higher price. There was there [375] fore no abandonment of the project from this personal and mental viewpoint. But abandonment of negotiations is one thing, abandonment of the purpose to buy or sell another. The purpose to buy or sell usually means to buy or sell at a satisfactory price, but not if such price is unattainable. At the same time there is evidence tending to show that E. W. Sellers, representing the defendant, and Mr. Sherry, representing the purchaser, each sought for strategic purposes to. impress the other with the belief that the negotiations were at an end and abandoned. Each immediately and for the purpose of helping out this deception invited another and subordinate agent of the seller and buyer to open what appeared to the plaintiff to be original and new and independent negotiations. The defendant as seller at this stage enlisted the activities of the plaintiff, its agent, and the Wisconsin Realty Company as buyer enlisted the activities of Mr. Saunders, its agent. Saunders knew of the former negotiations between the principals, but was in substance instructed to conceal the fact that he was acting for the Wisconsin Realty Company, and he did so. The plaintiff knew that Saunders was acting for the Wisconsin Realty Company,, but did not know of the existence of the prior negotiations by his principal with that company. The defendant knew that the plaintiff was negotiating a sale with Saunders, but professes not to have known that Saunders was the agent of the Wisconsin Realty Company represented by Mr. Sherry. It had early information sufficient to put it upon inquiry that this was the fact, and after having positive information that this was the fact it authorized or permitted the plaintiff to proceed with his negotiations. We think that under the circumstances the jury was authorized to find that the first direct negotiations were abandoned for the purpose of beginning anew through another channel and thereby obtaining more satisfactory results. The defendant might well be held to the position it assumed in this regard. The jury might infer from the evidence that [376] the defendant chose to discontinue the first direct negotiations and to negotiate through the plaintiff for the purpose ■of thereby obtaining a better price and so making a sale. Knowing that the plaintiff was acting for it under a contract which called for a commission, it availed itself of his services to obtain a higher price. There is also evidence from which the jury might infer that E. W. Sellers knew that the plaintiff was negotiating with the Wisconsin Realty Company through Saunders at least as early as September 27th. Having arrived at the conclusion that there, was evidence to support a finding that the first negotiations had been abandoned and broken off, whether with intent to give up the idea of buying and selling or for strategic purposes, it was properly ■a question of fact whether the plaintiff’s efforts were the procuring cause of the sale which was afterward consummated upon terms better for the seller than those theretofore offered by the purchaser, and a little less than those which apparently could have been secured by plaintiff had the closing up ef the transaction remained in his hands. Burdon v. Briquelet, 125 Wis. 341, 104 N. W. 83; Hoadley v. Savings Bank, 71 Conn. 599, 42 Atl. 667; Rounds v. Allee, 116 Iowa, 345, 89 N. W. 1098, and cases in briefs of counsel, supra. It follows that there was no error in refusing to direct a verdict for the defendant or in refusing to change the answer to the second question of the special verdict. The instructions to the jury were appropriate to the case of an abandonment of prior negotiations between the principal and the buyer and a subsequent sale of which the broker was a procuring cause, and while they might have been more full in view of the peculiar character of the evidence, still they contain nothing incorrect. We find no reversible error in the rulings upon evidence. The judgment is as near to the justice of the ease as it is possible to arrive, and no rule of law was violated, so we have concluded to affirm. By the Court. — Judgment affirmed.