Sterling Engineering & Construction Co. v. Miller

Esciiweilee, I. Nrom the foregoing statement of the facts relied upon by plaintiff to maintain this lawsuit it is apparent that all could have been stated as one cause of action which resulted in several items of damage. [195] The allegations of tbe complaint are sufficient to support an action for false representations. Woteshek v. Neuman, 151 Wis. 365, 138 N. W. 1000; Brown v. Ocean A. & G. Corp. 153 Wis. 196, 140 N. W. 1112; Westra v. Roberts, 156 Wis. 230, 145 N. W. 773; Rogers v. Rosenfeld, 158 Wis. 285, 149 N. W. 33; Winnek v. Moore, ante, p. 53, 159 N. W. 558. In the so-called first cause of action there is sought to be recovered not solely the amounts of $1,500 and $2,000 paid by plaintiff in satisfaction of the two judgments obtained against it by the two real-estate firms, but also expenses and damages incurred in connection with the defense of those actions, and as it thereby states a good cause of action for some of the relief demanded, the demurrer to that portion of the complaint must be overruled. If plaintiff was influenced to enter into litigation with those other agents and defend either one or both of those lawsuits, incurring expense and damage thereby, by reason of the false representations of defendants that Routt alone was instrumental in procuring the sale to Miller, then for such expense and damage it may recover. Manifestly, if such were the fact, then no one other than Routt could lawfully be entitled to a commission for the sale to Miller, and plaintiff would have been warranted in defending those lawsuits upon such representations to and belief by it as to the facts. But as to the amounts of $1,500 and $2,000 paid in settlement of the two suits for commission and sought to be recovered here the situation is different. It was, by the judgments in those two actions, judicially determined that the respective plaintiffs therein were, as real-estate agents, lawfully entitled to such amounts for their services in negotiating with Miller on plaintiff’s behalf for the sale of the property. It must, under the allegations of the complaint herein, be assumed that in those actions they satisfied the court that they had obtained Miller as a purchaser ready, willing, [196] and pecuniarily able to purchase at a price agreeable to plaintiff. This gave them a right to 'a commission as against plaintiff. McCabe v. Jones, 141 Wis. 540, 124 N. W. 486. The right of such agents accrued prior to the completion of "the sale to Miller and existed by reason of the several contracts between them and plaintiff. Anything that might have been said or done between plaintiff and defendants herein could not affect the rights of those other agents, and whatever representations, false or true, were made by defendants and relied upon by plaintiff could not have altered the existing rights of those agents as against the plaintiff. The plaintiff cannot now question those judgments nor shift the burden for the amounts thereof upon defendants in this action, and to the extent of the amounts paid to satisfy those judgments, viz. $1,500 and $2,000, it cannot recover in this action. As to the claim for $1,200 commission paid to the defendant Routt, set forth in the second cause of action, the allegations of the complaint show that plaintiff, believing that defendant Miller had not been approached by any one else as agent than the defendant Routt, and that Routt was not interested other than as such agent in such purchase, sold to Miller and paid commission to Routt. The relationship which it is alleged existed in fact between the defendants made them jointly interested in the purchase, and was such that defendant Routt could not be lawfully entitled to a commission for what would be, in effect, negotiating a sale to himself. He cannot occupy the two inconsistent positions of agent for the seller, bound to exercise the utmost good faith towards his principal, and at the same time be a purchaser of the property with his own personal interests first to be subserved. The law refuses to such undisclosed purchaser any right to a commission. Stewart v. Mather, 32 Wis. 344, 350; Tasse v. Kindt, 125 Wis. 631, 633, 104 N. W. 703. By the Court. — Order affirmed, and the cause remanded for further proceedings in accordance with this opinion.