Roberts v. Goodlad

Tbe following opinion was filed March 5, 1918: WiNsnow, O. J. There can be no question as to tbe plaintiff’s right to recover from tbe appellants tbe three per cent, commission named in tbe written contract. Tbe three appellants signed this contract not only on their own behalf, but representing themselves to be authorized to sign it on behalf of the other owners, and the jury have found, on the contrary, that they had no authority to act for their co-owners. Under these circumstances they are personally liable for the commission. Oliver v. Morawetz, 97 Wis. 332, 72 N. W. 877. As to the $2,000 additional commission we have had much difficulty. The evidence which is supposed to support the first answer of the special verdict is principally the evidence of the plaintiff himself. He testified to meeting the three appellants in McGilligan’s saloon at Madison, January 11, 1916, and to the making of the written agreement before mentioned, and then testified that, after that agreement was signed, “I spoke to the boys, and I said if somebody has some property to trade in would you take the property? They said, ‘No1, we won’t take a cent in trade, we will give you three per cent., we don’t care what you get, you can get $20,-000. All we want is the $16,000.’ ” Upon cross-examination he testified in substance with reference to this conversation as follows: “After that [the contract] was written I spoke to them about trading in property as part payment for the farm. I considered it part of the contract that if I traded for anything, took anything in trade, in order to make the deal, they said I had to take the property I got in trade, and I said I would. I said that to G. H. [one of the brothers]. I don’t know where Ernest was at this time, he may have been [321] around there. Q. H. talked to me more about it than all the rest. I couldrít say whether this was a conversation I hg.d with O. H. alone, others were near. This conversation was with G. Id. I was talking direct to him and he direct to me: that was all.the talking that was being done.” The only other evidence with regard to this alleged conversation was that of McG-illigan, who testified that he heard a conversation after the contract was signed, and proceeded to give the conversation as follows: “The only thing I heard said was, Herbert Goodlad [meaning G. HJ], while he had a cigar he said he didn’t care if he got $20,000, he didn’t care for any stuff in trade. “Q. You didn’t care who got it ? • “A. No, Roberts. He didn’t care what he got over $16,000; he didn’t want anything in trade. That was all I heard said; they was having a cigar then after getting up from the table.” The appellants deny that any such conversation was had. We do not'think there is sufficient foundation here to sustain a finding that an independent oral contract was made after the signing of the written contract, and this for four reasons, viz.: (1) The evidence as to the terms of the supposed oral contract is decidedly vague and unsatisfactory, and there can be no reasonable certainty as to what the language testified to meant when used: the subject under discussion was evidently the taking of property instead of cash and not the amount of the plaintiff’s commission; (2) the supposed oral contract bears every evidence of being mere loose talle: it seems quite beyond the reasonable bounds of belief that the parties, after having carefully set down in exact terms an agreement covering the whole subject, should at the same interview and practically at the same time, in a few casual words, make a new and different contract of such grave import and leave the written .contract on which the ink was hardly dry still in existence without attempt to change or recall it; (3) the conversation, by the plaintiff’s own admis [322] sion, was only with one of the appellants, and the plaintiff is unable to say that the others heard it or took part in it; (4) the alleged conversation was practically contemporaneous with the writing; both occurred at the same continuous interview with apparently no interval between. The plaintiff himself says: “I considered it a part of the contract” (i. e. the arrangement that if anything was taken in trade the plaintiff would have to take it). He evidently did not consider that there were two contracts, and we are of opinion that the evidence conclusively shows that there was in fact but one contract which was Yeduced to writing and which is not to be varied or contradicted by evidence of remarks or offers or inconsistent contemporaneous oral statements. , By the Gourt. — Judgment modified by deducting therefrom as of its date the sum of $2,000, and as so modified affirmed, with costs to the appellants. Upon a motion by the respondent for a rehearing it was contended, inter alia, that he was entitled, at least, to a commission of three per cent, on $18,000, which would be $540. On April 30, 1918, the mandate of this court was modified so as to read as follows: Judgment modified by deducting therefrom as of its date the sum of $1,940, and as so modified affirmed, with costs to the appellants. In all other respects the motion for rehearing was denied, without costs, except clerk’s fees.