Levander v. Johnson

Eschweiler, J. Though the written contract between the parties purported to give, plaintiffs an exclusive agency for six months for the sale of defendant’s real estate, nevertheless there was not coupled with the agency any such interest as made the contract between them, prior to actual performance thereunder, irrevocable, because it is performance under such agency contract that gives rise to the right to compensation and not the mere signing of the contract. [71] Prior to performance, though actual negotiations with a purchaser might well be such performance, the owner may, when it is done in good faith and not for the purpose of defeating a claim for compensation, withdraw such property from the market and thereby terminate, upon proper notice, the agency to sell. 3 Page, Contracts, § 1741; Crowe v. Trickey, 204 U. S. 228, 240, 27 Sup. Ct. 275; Ettinger v. Loux, 96 N. J. Law, 522, 115 Atl. 384, 20 A. L. R. 1265; Rowan & Co. v. Hull, 55 W. Va. 335, 47 S. E. 92; Hallstead. v. Perrigo, 87 Neb. 128, 126 N. W. 1078; Auerbach v. Internationale W. L. A. G. 177 Fed. 458; 31 Cyc. 1295; 4 Ruling Case Law, 252; 21 Ruling Case Law, 822. There is no actual showing in this case by plaintiffs of anything having actually been done by them in reliance upon the contract and for the purpose of performance thereunder prior to the time of the notice of revocation. There was nothing, therefore, in the shape of performance on their part -sufficient to have made the contract absolute between the parties at the time of the revocation, under the views expressed in Schoenmann v. Whitt, 136 Wis. 332, 334, 117 N. W. 851; John E. DeWolf Co. v. Harvey, 161 Wis. 535, 547, 154 N. W. 988; Birdsall v. Fraenzel, 154 Wis. 48, 53, 142 N. W. 274; Kelly v. Phelps, 57 Wis. 425, 429, 15 N. W. 385. See, also, Braniff v. Baier, 101 Kan. 117, 165 Pac. 816, L. R. A. 1917E, 1036. There is no controversy but that defendant’s wife, at his direction, did call at plaintiffs’ office and there tell them of defendant’s instructions; and although there is a discrepancy in the testimony as to just what she said at that time, it is not sufficient, in our judgment, to raise any issue of fact as to the revocation. From what has been said the defendant was entitled to judgment and other questions need not be considered. By the Court. — Judgment reversed, and cause remanded with directions to dismiss.