Boutelle v. Chrislaw

• Citation: 34 Wis.2d 665,150 N.W.2d 486
• Parties: Earl S. BOUTELLE, d/b/a Boutelle Agency, Respondent, v. Wallace CHRISLAW, Appellant.
• Decision Date: 09 May 1967
• Court: United States State Supreme Court of Wisconsin

Page 486

150 N.W.2d 486

34 Wis.2d 665

Earl S. BOUTELLE, d/b/a Boutelle Agency, Respondent, v. Wallace CHRISLAW, Appellant.

Supreme Court of Wisconsin.

May 9, 1967.

Rehearing Denied June 30, 1967.

Mary L. Dooley, Janesville, Lloyd J. Paust, Columbus, of counsel, for appellant.

Grutzner & Jaeckle, Beloit, for respondent.

HEFFERNAN, Justice.

This was a trial to the court. A finding of fact made by a trial judge will not be set aside upon appeal unless it is contrary to the great weight and clear preponderance of the evidence. Kirchen v. Gottschalk (1965), 26 Wis.2d 123, 126, 131 N.W.2d 885. However, this court is not bound by a finding of the trial court which is based upon undisputed evidence when that finding is essentially a conclusion of law. Pederson v. First Nat. Bank (1966), 31 Wis.2d 648, 654, 143 N.W.2d 425; Vogt, Inc. v. International Brotherhood (1955), 270 Wis. 315, 321i, 71 N.W.2d 359, 74 N.W.2d 749.

In the instant case, the undisputed facts show that the broker, within the period limited by the contract, found a purchaser who, though not having the cash in hand or available to pay the purchase price within the term of the contract, did have the credit standing and financial resources to pay the full purchase price by February 15. The trial judge therefore concluded that the broker had 'procured a purchaser' as required by the contract.

This is a conclusion of law, and this court may review the undisputed evidence upon which this conclusion is based and re-examine that conclusion.

The question posed by this appeal is whether the broker so complied with the terms of the listing contract that he is entitled to his commission. This court follows the generally accepted rule that:

'A broker employed to 'procure a purchaser' for real estate is entitled to his commission when he produces a person ready, willing and able to purchase upon terms specified by the owner in the brokerage contract.' Niske v. Nackman (1956), 273 Wis. 69, 75, 76 N.W.2d 591, 594.

We have stated in Kaufman v. La Crosse Theaters Co. (1945), 248 Wis. 43, 50, 20 N.W.2d 562, 565, that:

'It is elementary that a proposed acceptor must be ready, able, and willing to go through with the deal within the time limited.'

In this case the proposed purchase offer was made within the time limited. The proposed 'offer to purchase,' however, was not that the cash be delivered during the time stipulated in the contract, but on February 15, somewhat more than two weeks later. The testimony reveals that the intent of the purchaser was to supply the full amount of the cash on that date upon the tendering of the deed. The question on this appeal is therefore limited to whether in this type of transaction, where the seller insists upon the terms of his listing contract, the cash must actually be paid over and the deal consummated within the listing period if the broker is to collect his commission.

The broker takes the position that all that is required is that there be a purchaser within the period who is ready and willing to close the transaction and who is able at a later date to pay over the cash without resort to some other type of credit arrangement involving the seller. The plaintiff broker went so far as to testify that an offer would be a cash offer even though a proposed purchaser were not able to actually pay over the money until ten months after the expiration of a listing contract.

The law of Wisconsin, however, is that the purchaser must be

'* * * able to command the necessary money to close the deal on reasonable notice, or within the time limited by the vendor, if a time be limited.' McCabe v. Jones (1910), 141 Wis. 540, 543, 124 N.W. 486, 487.

There is, of course, no doubt that, had the vendor accepted the offer to purchase, the proposal of the purchaser would have ripened into a new contract--a contract to purchase--and the vendor would have been bound by it. Here, however, it was not accepted, and for the broker to earn his commission, he must have complied with the terms of the listing contract within the time limited.

We conclude that under these circumstances it was the broker's duty to produce a purchaser who was ready, willing, and able to consummate the deal before the listing contract expired. It is not enough that the purchaser have the potential of consummating the deal within a reasonably short time. He must not only be ready and willing, but have the present ability to pay. The general rule is in accord with this conclusion. Corpus Juris Secundum states:

'Each of the words 'ready,' 'willing,' and 'able' expresses an idea that the others do not convey. All three of these elements must exist in the customer, in order to entitle the broker to his commissions. It is not sufficient that the customer is ready and willing, but he must also have the ability to carry out the loan, sale, purchase, or exchange; neither is it sufficient that he has the ability to purchase; he must be ready and willing to do so; nor is it sufficient that he is able, ready, and willing, but on terms different from those prescribed by the owner. * * *

'To be able to make an immediate cash payment or deposit, a purchaser or lessee must, of course, have money; and it is not sufficient that he has property on which it can be raised or out of which it can be made; but, where he is able to pay cash, it is immaterial whether he had the money originally, borrowed it, or acquired part of it from another person on an understanding that such person is to have an interest in the land purchased.' 12 C.J.S. Brokers § 85, p. 192.

An annotation at 18 A.L.R. (2d) 376, 382 notes:

'The view prevails that if the authorization of the broker is for a cash sale, the broker does not earn his commission by merely producing a purchaser who seeks time in which to obtain the purchase price or desires to make deferred payments.'

Restatement (2d), Agency, p. 351, sec. 446, follows a similar rationale:

'An agent whose compensation is conditional upon his performance of specified services or his accomplishment of a specified result within a specified time is not entitled to the agreed compensation unless he renders the services or achieves the result within such time, unless the principal, in bad faith, has prevented him from doing so.'

The comment to this section, supra, page 352, provides the observation:

'The rule is applied most frequently to promises to pay compensation to brokers in consideration for the production by the broker of a customer within a specified time. The usual interpretation of such an agreement is that the broker is to receive his commission only if he produces a customer able, ready, and willing to meet the principal's terms within the specified time, and hence no commission is payable to a broker for producing a prospective customer within the specified time if the latter does not come to an agreement with the principal until after the specified time, unless the principal has agreed with the broker to extend the time or in bad faith prolongs negotiations. The broker can protect himself by requiring an agreement that he is to receive his compensation if he produces a customer who enters into negotiations with the principal within the specified time and subsequently completes the transaction.

Based upon these general principles, we conclude that the term 'cash' as it appeared in the listing contract required the payment of such cash during the lifetime of the contract. Leaving out the extraneous portions of the listing contract, it provides that:

'If * * * a purchaser (is procured) by the Broker * * * at the price and upon the terms specified herein * * * during the term of this contract * * * the Seller agrees to pay Broker a commission. * * *'

Another section setting forth the terms...