Bowe v. Gage

• Citation: 106 N.W. 1074,127 Wis. 245
• Parties: BOWE ET AL. v. GAGE ET AL.
• Decision Date: 23 February 1906
• Court: United States State Supreme Court of Wisconsin

127 Wis. 245

106 N.W. 1074

BOWE ET AL.

v.GAGE ET AL.

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by William H. Bowe and others against Rosier N. Gage and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

The defendants being interested in a farm in Fond du Lac county, entered into an agreement with the plaintiffs, real estate agents, to the effect, as found by the jury, that if plaintiffs should effect a sale or procure a purchaser at a price acceptable to the defendants, the latter would pay plaintiffs a 2 per cent. commission on the price obtained. $1,800 was stated as the price which defendants desired or demanded. Plaintiffs made various exertions to make sale, reported several offers, which were unsatisfactory, and at length, about January 28, 1903, obtained and communicated offer from one Ferber of $17,000, which was rejected by defendants as inadequate, and negotiations by plaintiffs continued. On February 20, 1903, defendant Gage came to plaintiffs and stated to them that he had bought the farm from the other co-owners and that they felt like paying the plaintiffs something, although they had not earned their commission according to contract. Plaintiffs responded that they were still hopeful of effecting a sale to Ferber at a satisfactory price; whereupon Gage, as found by the jury, repeated to plaintiffs that he had decided and intended to keep the farm as a home for himself and not to sell it; that it was no longer in the market; whereupon the plaintiffs said that, if he had so decided, they would forego any claim to continue efforts to find and effect a sale, and accepted his offer to pay them $25 for what they had done, and gave a receipt in full for all their services in that connection. At the moment of such negotiation, defendant Gage had not determined or decided to withdraw said farm from the market or to keep it, but was on his way to see the same man Ferber with the then present intent to sell to him if a satisfactory price could be obtained; the following day he did effect such sale for $17,356, upon learning which the plaintiffs demanded payment of their commission of 2 per cent. on that amount, less the $25 received by them, which they credited thereon; that being refused, they brought this action to recover that amount. A special verdict was found, substantially to the foregoing effect, whereupon judgment was entered in favor of the plaintiffs for $365.38 and costs, from which defendants appeal.Doyle & Hardgrove, for appellants.

Duffy & McCrory, for respondents.

DODGE, J. (after stating the facts).

1. The sufficiency of the complaint to state a cause of action is assailed. Appellants' argument upon this subject, as also upon sufficiency of the proofs, is pervaded by an assumption that the agreement was to pay commission only in case plaintiffs found a customer ready and willing to pay $18,000. Such assumption is not supported by the complaint and is negatived by the verdict. The one alleges, and the latter finds, a contract to pay plaintiffs for their services in endeavoring to effect sale, 2 per cent. of the price for which the farm should be sold to any customer produced by them. This is substantially the contract dealt with in Stewart v. Mather, 32 Wis. 344, where it was held that the broker earns his commissions if he produces a purchaser to whom the principal in fact sells. Willey v. Rutherford, 108 Wis. 35, 84 N. W. 14;Terry v. Reynolds, 111 Wis. 122, 86 N. W. 557; The Edward H. Everett Co. v. The Cumberland Glass Mfg. Co., 112 Wis. 544, 88 N. W. 597. We may also say in this connection that we find evidence tending to prove the making of such contract, as also the production of the purchaser to whom the sale was made; hence there was no ground for nonsuit or direction of verdict on that theory, as also contended by appellants.

Appellants also urge, in support alike of demurrer ore tenus and motions for nonsuit and direction of verdict, that the accord and satisfaction is not impeached, first; because no misrepresentations of any existing fact are alleged or proved, and, second; because no return of the $25 paid on said settlement was ever made or tendered. In discussing the first ground, appellants seek to treat Gage's declarations to plaintiffs that he had decided to keep the farm and not to sell it, as a mere promise now sought to be added to the written agreement then made. This is a misconception. It was the statement of an existing fact, albeit depending on defendants' mental state. If they had in fact withdrawn the property from sale, as they had right to do, all prospect for earning commission as result of the work plaintiffs had already done was at an end and the latter would naturally be induced to accept anything they could obtain, and release defendants from the mere moral obligation resting upon them. The complaint alleges and the verdict finds representation of such an existing mental determination. By undisputed evidence it is shown that it did not exist, but, on the contrary, Gage then had the present intention to proceed at once to efforts to sell to the very customer brought to his notice by plaintiffs. We cannot doubt that false representation of an existing material fact was alleged and supported by some evidence. Upon the question whether the conceded failure to either return or tender back the $25 paid precluded plaintiffs from denying the validity of the settlement on the ground of fraud, the decisions of this court leave little doubt, especially when set up by way of defense. Leslie v. Keepers, 68 Wis. 123, 31 N. W. 486;Davis & Rankin Bldg. & Mfg. Co. v. Riverside Butter & Cheese Co., 84 Wis. 262, 268, 54 N. W. 506;Friend Bros. v. Hulbert, 98 Wis. 183, 73 N. W. 784;Gay v. Osborne & Co., 102 Wis. 641, 78 N. W. 1079;Bostwick v. Insurance Co., 116 Wis. 392, 89 N. W. 538, 92 N....