Huchting v. Rahn

Doerfler, J. Plaintiff’s first assignment of error is based upon the refusal of the court to grant his motion for a directed verdict. The contract in question is not the usual real-estate agency contract. Ordinarily an agent is not entitled.to a commission where his efforts have proven unsuccessful. His reward comes only with success. He may be ever so active and even expend a large sum of money in an effort to procure a purchaser, but. if he fails the loss is solely his and he loses the labor, and effort which was staked upon success. On the other hand, the slightest effort resulting in success entitles the agent to his commission. Sibbald v. Bethlehem Iron Co. 83 N. Y. 378. Under such a contract the agent is vested with a large discretionary power with respect to the efforts to be made and the means to be employed in procuring a purchaser. During recent years the use of the exclusive-agency contract has become quite frequent, and such contract has on a number of occasions been construed by the courts. Under such a contract it has been held in Graham v. Lamp, 174 Wis. 373, 183 N. W. 150, that where the property is sold by the owner, the agent, in order to be entitled to a commission, must show that he made a bona fide effort to procure a purchaser. In W. G. Taylor Co. v. Bannerman, 120 Wis. 189, 97 N. W. 918, which involved a contract between principal and agent signed by both parties, and by which one party, the owners of a stone quarry, appointed the other as their exclusive agent for a given territory for the sale of certain described stone at prices fixed therein and agreed to quote [54] no prices to others without the agent’s consent, it was held that such a contract was not void for want of mutuality, but required the agent to act in good faith and use due diligence in bringing the principals’ stone to the notice of possible purchasers for the purpose of sale to them. In this connection is also to be noted the general rule requiring all agents to exercise reasonable care, skill, and diligence in the performance of their obligations as agents. Clearly, under the authorities referred to, an agent under an exclusive-agency contract cannot sit idly by, doing nothing or substantially nothing during the period of his agency, and claim a commission where the sale is effected through the efforts of the owner. The contract in the instant cáse covers a period in excess of six months. In executing this contract the owner extends a valuable right to the agent, under and pursuant to which he is afforded an opportunity to earn a substantial compensation in the form of commissions. The contract being limited as to time, the effort of the agent, to be bona fide, must be substantially commensurate with the term of the agency, unless a sale is effected prior to' the termination of the period of the contract. A bona fide effort made shortly after the execution of the contract, which loses its efficacy, is not available to an agent where the property is subsequently sold through the efforts of the owner, and the crucial test to be applied in each case, where the issue as to the agent’s right of commission under an exclusive-agency contract arises, is, Did the agent, during the period of the agency or prior to the actual sale, exercise such care, skill, and diligence required of him under the law of agency as would amount to a bona fide effort? Subject to the general rules above stated, therefore, whether or not an agent exercised the proper degree of care, diligence, skill, and good faith in the execution of his agency, under an exclusive-agency contract, is ordinarily a question for the jury. 2 Corp. Jur. 959. With the exception of the attempt on the part of the [55] plaintiff to advertise the premises by a “For Sale” sign, the defendant and his wife denied all knowledge of any effort made by the plaintiff to procure a purchaser. Plaintiff’s case, therefore, rests solely upon his own evidence. No prospective purchaser was produced a§ a witness, nor did the plaintiff produce a single. person whom he claimed he interested as agent in the sale of the property. In view of these facts and considering the limited efforts made by the plaintiff, the court properly resolved the issue into the question submitted to the jury in the special verdict; and the jury having found adversely to plaintiff’s contention, such finding cannot now be disturbed. Under plaintiff’s second assignment of error he contends that the motions to direct a verdict made by ,the parties, under sec. 2857® of the Statutes, required the court to discharge the jury and to determine the entire case upon the facts as well as the law. Sec. 2857a provides: “Whenever in an action tried before a jury all the parties to -the action shall, without reservation, move the court to direct a verdict, such motions shall, unless otherwise directed by the court before the discharge of the jury, be considered as equivalent to a stipulation by the parties waiving a jury trial and submitting the entire case to the court for decision of the facts as well as the law.” 'The meaning of this section is plain and the wording is unambiguous. Under this statute, upon motions of the respective parties for a direction, which motions were without reservation, such motions would not constitute a stipulation waiving a jury trial where the court otherwise directs before the discharge of the jury. In the instant case the court did otherwise direct by submitting the case to the jury. It was clearly intended by the legislature that it becomes optional under such a stipulation to either direct a verdict or to submit the issue to the jury. We therefore hold that the judgment of the circuit court must be affirmed. By the Court. — Judgment affirmed.