Genske v. Leutner

Stevens, J. Appellants urge that the judgment should be reversed upon two grounds: 1. That there can be no recovery because there was no [127] contract in writing to pay commission as required by sec. 240.10 of the Statutes. 2. That plaintiff did not perform the service required by his contract because the property was not sold. 1. The receipt given by Olga Leutner on July 9, 1924, is a note or memorandum of contract which fully complies with the requirements of sec. 240.10 of the Statutes. It is in writing. It describes the real estate to be sold. It expresses the price for which the property is to be sold and the commission to be paid and is subscribed by the person who agrees to pay the commission. It renders the defendant Olga Leutner liable to pay a commission if the plaintiff has performed the required services. By making his wife his agent and adopting her acts as his own, defendant Leutner rendered himself liable to pay the commission. The signing of the contract by one joint owner of the property who acted as agent for the other joint owner is a compliance with the requirements of the statute that the writing be subscribed by the person agreeing to pay the commission. 2. The purchaser produced by the plaintiff refused to complete the sale wholly because defendants were unable to give him possession of the property. The jury found that the plaintiff did not state, when the receipt of July 9, 1924, was signed by defendant Olga Leutner, that this receipt would be of no effect and that there would be no deal unless the defendants delivered .the property vacant. The case was submitted to the jury upon a special verdict. There was no request to submit the question whether there was an agreement that the defendants were not to be liable to pay a commission unless they were able to secure the removal of the tenant. Pursuant to the provisions of sec. 270.28 of the Statutes this issue of fact must be deemed to have been determined by the trial court in accordance with plaintiff’s proof that no such agreement had been made. The receipt of July 9, 1924, obligates the defendant to have the property [128] sold “vacated as soon as possible.” This phrase is ambiguous as to time. Viewed in the light of the testimony as to the statements made by defendant Olga Leutner at the time the receipt was signed as to advice received from defendants’ attorneys and the institution of legal proceedings by the defendants to remove the tenant, the phrase should be construed to mean that the defendants would deliver possession to the purchaser .as soon as the tenant could be removed by the legal proceedings which were contemplated when the receipt ■ was signed and which were instituted shortly after the signing of the receipt. It was the failure of the defendants to deliver possession that prevented the consummation of the sale. Plaintiff had done all that he was required to do in order to entitle him to receive his compensation. By the Court, — Judgment affirmed.