Hug v. Theilacker

Owen, J. The contract of listing expired March 14, 1921. It is not contended that plaintiff is entitled to compensation under the terms of that contract. Plis claim for compensation, therefore, rests in implied contract. In order to create an implied contract facts and circumstances must be shown from which a hiring can be implied. Segnitz v. A. Grossenbach Co. 158 Wis. 511, 149 N. W. 159; note in 27 L. R. A. n. s. 786. In order to give rise to such an implication it must appear that the plaintiff was rendering service in behalf of the defendant with his knowledge and consent. The plaintiff testified that from time to time subsequent to March 14th and prior to the'time of sale he did take prospective customers to view the premises. The defendant testified that if plaintiff did take prospective customers to view the premises it was entirely without his knowledge, and that he had no knowledge whatever that plaintiff, after the expiration of the listing contract, was continuing his efforts to sell the house. Upon this state of the evidence the jury found that the defendant did not knowingly accept and retain the benefits of plaintiff’s services. This is tantamount to a finding that the defendant had no knowledge that plaint 333 iff was continuing his efforts to make sale .of the premises after the expiration of the listing contract. Unless the defendant had knowledge of such efforts on the part of the plaintiff, no facts exist from which a contract of hiring can be implied. In order for the plaintiff to recover a commission upon the sale of the premises to Koch he must establish a contract of hiring prior to that transaction. In the absence of such a contract, either express or implied, prior to the transaction, the services rendered by him in connection therewith were those of a volunteer and do not entitle him to compensation. Dilweg v. Milwaukee Machine Tool Co. 174 Wis. 200, 182 N. W. 726. As the verdict of the jury was supported by the evidence it must be regarded as a verity. If so, the defendant had no knowledge of plaintiff’s efforts to procure a purchaser for the premises, and no facts or circumstances exist upon which a contract of employment may be implied. It follows that the judgment of the civil court was correct and should be affirmed. By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment affirming the judgment of the civil court.