Arnold Joerns Co. v. Roberts

• Decision Date: 03 April 1962
• Citation: 114 N.W.2d 416,16 Wis.2d 333
• Parties: ARNOLD JOERNS CO., Respondent, v. DeWitt L. ROBERTS, Appellant.
• Court: Wisconsin Supreme Court

Page 416

114 N.W.2d 416

16 Wis.2d 333

ARNOLD JOERNS CO., Respondent, v. DeWitt L. ROBERTS, Appellant.

Supreme Court of Wisconsin.

April 3, 1962.

Plaintiff brought action to recover commissions allegedly due as a result of an oral agreement. Defendant demurred to the complaint and appealed from an order overruling his demurrer.

The complaint alleged that the plaintiff, a real estate and insurance broker, had an oral agreement with defendant, a contractor, real estate broker and speculator in real estate, entered into some time in 1954 and to continue indefinitely until terminated by either party, that if the plaintiff should introduce anyone to defendant who would later purchase any property from defendant or enter into a contract with defendant for construction of a house, defendant was to pay plaintiff a commission of five per cent for finding such prospect; that plaintiff found and introduced certain parties who purchased property from defendant or for whom defendant built houses and plaintiff was paid commission; that thereafter plaintiff found and introduced to defendant three other parties for each of whom defendant built a home; that plaintiff has demanded payment of five per cent commission on the cost of each of said houses.

Defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action, claiming that no recovery can be had on an oral agreement to pay a commission for the sale of real estate. Defendant appeals from an order entered October 16, 1961, overruling the demurrer, and ganting 20 days in which to answer, on payment of motion costs.

Morrissy, Morrissy, Sweet & Stowe, Elkhorn, for appellant.

William H. Freytag, Elkhorn, for respondent.

FAIRCHILD, Justice.

1. Construction of complaint. The alleged oral 'agreement' was twofold: Defendant promised to pay plaintiff a commission if plaintiff introduced anyone who later (a) purchased property from defendant or (b) contracted with defendant for the construction of a house. Plaintiff seeks the agreed commission for introducing persons for each of whom defendant 'built a home.' Defendant argues that because the complaint did not allege that these persons entered into a contract with defendant for construction of a house, so as to fall squarely under part (b) of the 'agreement' they must have bought real estate from defendant and plaintiff's claim must be under part (a). Since the agreement was oral, there can be no recovery under part (a). ¹

But the allegations of a pleading must be liberally construed, with a view to substantial justice between the parties, ² and the pleading is entitled to all reasonable inferences that can be drawn from the facts pleaded. ³ This complaint will bear the construction that plaintiff introduced prospects seeking the building services of a contractor and that defendant furnished those services to the prospects named. In construing the complaint, we may infer that contracts were made before the services were rendered, that being the ordinary course of dealing in such matters.

A promise to pay a commission for finding persons who will contract for the services of a building contractor need not be in writing to be valid.

2. Claimed lack of mutuality. On oral argument, defendant suggested that there was no contract between plaintiff and defendant because, although defendant allegedly promised to pay a commission if plaintiff produced a customer, plaintiff did not promise to seek customers. This is true of the oral 'agreement' made in 1954. That...