Martins v. Bauer

Doerfler, J. It will be noted that the civil court in its findings found “that no specific agreement was entered into by and between said parties . . . as to the amount of commission which the plaintiffs were to receive upon orders for cans obtained by them.” The complaint in specific language expressly alleges that the contract provided for a five per cent, commission. In other words, plaintiffs tendered and relied upon an express contract in that regard. Defendant by its answer placed this allegation in the complaint in issue. The case was tried before the court upon such issue and not upon the theory of quantum meruit. All of the evidence was offered and admitted upon the theory of an express contract, and upon such theory solely. When the civil court thereupon made its findings of fact and conclusions of law, the finding based on quantum meruit naturally operated as a surprise to the defendant. It was argued, however, in the circuit court, and is now argued in this court, that the plaintiffs actually introduced evidence from which an inference could be properly drawn that a five per cent, commission is a reasonable commission, and that such evidence fully supported the finding of the trial court on the basis of quantum meruit. An examination of the record discloses that the evidence relied upon by the trial court consists of the letter of July 28, 1922, a copy of which, in part, has been heretofore set out in the statement of facts. The learned circuit judge in construing this letter in his opinion concluded that it afforded a sufficient basis upon which to predicate a finding of reasonable value. We have read this letter carefully, and we are unable to agree with either the civil or the circuit court. The pertinent part of the letter reads as follows: “We desire to call your attention to one fact before you go further into this matter, and that is that the commission on cans is comparatively small compared with your selling commission on other items in our line, due to the fact that can business is taken on a very close margin and it is physi194 catty impossible for-its to pay a commission in any instance exceeding five per cent” The letter clearly fixes a maximum, but does not fix a minimum. Whether a maximum commission would be a reasonable one, or a commission less than five per cent., would depend largely upon the size of the order and other surrounding facts and circumstances. We know that in real-estate brokerage cases the amount of the commissions of the broker is regulated largely by the amount involved in the deal, and that such commissions are graduated in accordance with the amount involved. For instance, a certain percentage is allowed up to $10,000, and thereafter the commission over that amount is graded on a downward scale. Small orders command a higher rate of commission than large orders. We are thus confronted with a record which does not support a quantum meruit finding. But, even though we assume that the letter of July 28th justified the inference relied upon by both the trial and the circuit court, nevertheless we are confronted with the apparent situation that the action was brought and tried upon an allegation of express contract, which was definitely put in issue by the answer of the defendant. At no time during the proceedings did the plaintiffs offer or attempt to. amend the complaint so as to include the issue of quantum meruit. Fiad this been done, proper notice would have been brought home to the defendant. All of plaintiffs’ evidence in the case was introduced solely for the purpose of establishing an express contract. We therefore can readily appreciate the assertion of defendant’s counsel that they were taken greatly by surprise by 'the findings of the court made and filed after the trial. If, notwithstanding the plea of express contract contained in the complaint, the issue of quantum meruit had been tried, the defendant would have had no just cause for complaint, even though the pleadings, were unamended, and the court could consider the pleadings amended whether they [195] were so in fact amended or not. Forcy v. Leonard, 63 Wis. 353, 24 N. W. 78; Slater v. Estate of Cook, 93 Wis. 104, 67 N. W. 15. The defendant in this case clearly has not had its day in' court on the issue of quantum meruit, and the finding in that behalf cannot be sustained. Scifert v. Dirk, 175 Wis. 220, 184 N. W. 698; Pearson v. Kelly, 122 Wis. 660, 100 N. W. 1064. On the review of the record in the circuit court such court construed the findings of the trial court and arrived at the conclusion that the trial court erred in its conclusions of law. The circuit court assumed that the trial court erroneously took the position that an agent’s or broker’s commission, unless limited by the terms of the contract, depended not upon the amount of the order procured, but upon the value of the goods actually delivered. It must be admitted that the findings of the trial court are logically susceptible to' such conclusion. That a broker’s commission, except where limited by contract, must be based upon the amount of the order procured, is in conformity with the holdings of this court and of other courts and of text-writers generally, and is accepted as true doctrine by courts and the profession. If this appeared clearly and unequivocally from the findings, no quarrel could be had with the opinion of the learned circuit judge. There was evidence in the case, however, which would justify the trial court in basing the amount of the recovery not upon the amount of the order, but upon the value of the goods actually delivered. So that the findings in the form in which they appear create a situation of considerable doubt as to what was actually in the mind of the trial court when the findings were made. An examination of the record convinces us that the plaintiffs’ case is not without merit; that plaintiffs performed valuable services for which compensation should be awarded; but, owing to the condition of the record with respect to the matters heretofore considered, we are of the [196] opinion that in order to promote justice the judgment of the lower court should be reversed and a new trial ordered.. Plaintiffs strenuously argue that because defendant’s counsel did not except to the findings of fact and conclusions of law of the trial court, that therefore these findings should be considered as verities. But the plaintiffs did not appeal from the judgment of the civil court. This court has held in Foster v. Bauer, 173 Wis. 231, 180 N. W. 817, as will appear from paragraph 4 of the syllabus: “Findings of the civil court of Milwaukee county have the same status on appeal to the circuit court as findings of the circuit court on appeal to the supreme court. They are not entitled to the conclusiveness of a verdict of a jury, but are controlling unless against the clear preponderance of the evidence.” The reason that the defendant’s counsel did not file exceptions is because they deemed the result favorable to their client; because they would rather submit to a small judgment than to be worried and annoyed by protracted litigation,- — a position highly commendable and not subject to criticism. Talcing this view of defendant’s position, no exceptions were necessary. It not only would have accepted the judgment in its original form, but stipulated to an enlargement thereof, in accordance with the actual facts as shown by the evidence. Defendant complains on the appeal to this court because of an increase of the principal amount to $1,000, based upon a theory of the case as disclosed by the findings, about which, to say the least, there is considerable doubt. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded to such court with directions for a new trial. The defendant is entitled to its costs and disbursements on this appeal.