Etscheid v. Tiefenthaler

The following opinion was filed June 1, 1920: Owen, J. Aside from challenging certain findings of fact, which we have considered and find sufficiently supported by the evidence, appellants’ principal contention is that the contract between the parties constituting the basis of recovery is void because within the statute of frauds. Their argument on this proposition is grouped under the following heads: (a) the oral agreement between the parties was a partnership' agreement; (b) the partnership agreement being oral and involving an interest in land is void under the statute of frauds; (c) the oral contract between Floyd Fisher, Etscheid, Tiefenthaler, and Korthals on the one hand and the Atlas Investment Company on the other hand is void and its specific performance cannot be enforced; and (d) the plaintiffs did not fully perform the conditions of the oral contract. ■ A general statement of our views with reference to the character and effect of the contract between plaintiffs and defendants, as well as the separate contract with the Atlas Investment Company, will suffice as a sufficient response to 'appellants’ contentions. We do not regard the contract as constituting a partnership agreement. It was no more nor less than an agreement between real-estate agents to divide and share commissions in certain proportions accruing from the sale of a specific, parcel of real estate — an arrangement very common among real-estate agents. To hold that this agreement constituted a partnership between the parties would be to say that every agreement between real-estate [277] agents for a division of commissions in the event of a sale of a specific parcel of real estate constituted such real-estate agents partners, a proposition which we apprehend is without support in reason or authority. Neither did it involve any interest in real estate within the meaning of secs. 2302 or 2304, Stats. It created no estate or interest in, nor any trust or power over or concerning, lands, nor was it a contract for the sale of any lands of any interest in land; so that, whether or not it was a partnership agreement, it was not affected by the statute of frauds. It may be assumed that the agreement between Fisher, Etscheid, Tiefenthaler, and Korthals on the one hand and the Atlas Investment Company on the other was within the statute of frauds. But in view of the fact that the Atlas Investment Company fully performed its part of the transaction; that this action is not for the specific performance of that contract, nor is the right of plaintiffs to recover in any respect based thereon, that circumstance has no bearing whatever upon the issues in this case. The argument that the plaintiffs did not fully perform the conditions of the oral contract on their part and, consequently, are not in a position to recover in this action, is based on the fact that for some considerable time before the $2,000 note executed by Korthals and Etscheid to the Atlas Investment Company became due, Korthals and the defendants were continually urging the plaintiffs Etscheid and Fisher to meet their share of the note, and that because of their failure so to do they defaulted in carrying out.their part of the contract. This contention falls when it is considered that there could be no default on the part of Fisher and Etscheid before the note became due, and, according to the finding of the court, based on sufficient evidence, this deal was consummated on the 26th day of October, while the note became due on the 2d day of November. The deal was consummated, therefore, one week before the note became due, hence there could be no default on the part of the [278] plaintiffs at the time the sale of the farm was arranged for. We see no error in the record. By the Court. — Judgment affirmed. A motion fon a rehearing was denied, with $25 costs, on September 25, 1920.