Brown v. Griswold

• Decision Date: 26 February 1901
• Citation: 109 Wis. 275,85 N.W. 363
• Parties: BROWN v. GRISWOLD ET UX.
• Court: Wisconsin Supreme Court

109 Wis. 275

85 N.W. 363

BROWN

v.GRISWOLD ET UX.

Supreme Court of Wisconsin.

Feb. 26, 1901.

Appeal from circuit court, Grant county; George Clemenson, Judge.

Action by Robert W. Brown against O. F. Griswold and wife. Complaint dismissed, and plaintiff appeals. Reversed.

The defendant, being the owner of a tract of real estate in the city of Platteville, fronting north on Main street about 210 feet, and extending southward about 360 feet, through the block, to another street, made a verbal arrangement with Thomas L. Cleary, a lawyer, either to make sale thereof or to find customers therefor. After several years, characterized by much correspondence, and during which the south half of the premises had been sold by said Cleary, the latter, on June 2, 1896, closed a sale of the remainder to Brown at the price of $3,500, payable upon delivery of the deed, and gave to him an acknowledgment of payment of $100 thereof, reciting the terms of the agreement of sale, and signed the same, “O. F. Griswold, by T. L. Cleary, Agent.” Defendant repudiated the sale, and on the day after this suit was commenced and lis pendens filed conveyed the premises by warranty deed to one McCoy, on whom had been served a copy of the notice of lis pendens the day before the filing of complaint and lis pendens. This actionbeing brought to require specific performance, and being tried by the court, judgment was rendered dismissing the complaint, from which the plaintiff appeals. Further detail of facts will appear in the opinion.

Orton & Osborn, for appellant.

Lowry & Clementson, for respondents.

DODGE, J. (after stating the facts).

There is but one debatable question in this case, and that is whether the defendant Griswold's arrangement with T. L. Cleary was merely an authority to seek and produce customers for the defendant's property, or whether, as between themselves, it was contemplated and agreed that Mr. Cleary was to sell the property at prices named and bind Mr. Griswold to such sale. This depends upon what was the conversation which the parties confessedly had at about the time the respondent left Platteville, in 1892, as to which different versions are given by Mr. Cleary and by the defendant in their testimony. This conversation, in which the agreement, whatever it was, was made, was followed by several years of correspondence and other transactions, all referring back to that original arrangement, and they are relevant and material merely as declarations and conduct evidentiary, and by way of practical construction, of the agreement into which Cleary and Griswold had already entered. This being the issue, a direct and unambiguous finding of the trial court thereon would be of very much weight, and, unless the preponderance of evidence to the contrary of such finding was entirely clear, we should deem ourselves controlled thereby. On turning to the so-called findings, we find a document which it is confidently believed is without precedent. It consists of some 13 printed pages, reciting a large share, but not all, of the evidence in detail. It finds that Mr. Griswold gave in testimony certain quoted words, and wrote certain quoted letters, and the same as to Cleary and as to the plaintiff. Indeed, the first 17 of the so-called “Findings of Fact” are but little more than a repetition of information which ordinarily is derived, and in this case could have been derived, from the bill of exceptions, at least so far as the findings have any reference to the single disputed issue. The so-called findings of fact conclude with the eighteenth: “I further find that Mr. Cleary had not been authorized by Mr. Griswold to execute the contract of June 2, 1896, set forth in finding 10, and that the latter did not ratify said contract, but refused to do so.” Then follows the single conclusion of law that the plaintiff is not entitled to the relief demanded, and defendants are entitled to have the complaint dismissed upon the merits. This eighteenth finding is ambiguous. It does not declare the conclusion of the trial judge either way upon the real litigated issue, namely, whether Griswold's authority to Cleary was to close sales and commit him to them, or was only to present customers for his acceptance or rejection. The natural construction of the words used in the eighteenth finding would indicate no more than a decision either of the question of fact whether Griswold expressly authorized Cleary to execute the specific written contract, or a question of law whether authority so to do resulted from the transactions between them. It was stated upon the argument, without dissent, that a question largely debated before the trial court was whether oral authority could suffice to empower an agent to make a written contract for the sale of lands. That question was not discussed by the respondent in this court, and the law thereon in this state in favor of such power seems to be well settled in Dodge v. Hopkins, 14 Wis. 630;Smith v. Armstrong, 24 Wis. 446; and Tufts v. Brace, 103 Wis. 341, 344, 79 N. W. 414. In this situation we are left in much doubt whether the record discloses any conclusion of fact by the trial court upon the material issue, or merely upon one which the court believed to be material, but which, under the authorities, is not so. A careful examination of all the evidence leaves no doubt that, as an original proposition, it preponderates in favor of Mr. Cleary's version of the contract, as will appear by a fuller discussion thereof hereafter; and, while we are not prepared to declare that its preponderance is so clear and overwhelming that we would set aside an unambiguous finding of the trial court to the contrary, the fact that it does preponderate against this eighteenth finding, if it be construed as respondent would have it, is a very cogent one in guiding us to a conclusion as to the meaning of that finding. We should be slow to believe that the court meant to decide that the parties did not have an intention which their conduct and correspondence have so clearly evinced. Again, if the court intended by this last finding to decide what were the terms of the agreement or arrangement between Cleary and Griswold, we are unable to conceive any purpose to be accomplished by devoting many pages to setting forth the words of their testimony and correspondence. Such instrument strongly suggests confirmation of what was asserted upon the argument, that the eighteenth finding merely declared the court's conclusion that, although the arrangement had been that Mr. Cleary should make and close a sale on behalf of his principal if he had an opportunity at the price fixed, such arrangement did not constitute an authority to execute the written instrument on which the plaintiff relied. All these considerations constrain us to the view that such is the true meaning and construction of the eighteenth finding, and that the case comes to us with no finding by the court below upon the disputed question of fact on the resolution of which the rights of the parties must depend. Being thus without such finding, three courses are open to us on appeal. If the evidence clearly supports the judgment, we should confirm it. Jones v. Jones, 71 Wis. 520, 38 N. W. 88;Raipe v. Gorrell, 105 Wis. 636, 81 N. W. 1009. Failing this, if the question is in doubt and uncertain, so that a decision here might work injustice, we should reverse and remand for further trial. Kemp v. Seely, 47 Wis. 687, 3 N. W. 830;Cramer v. Hanaford, 53 Wis. 85, 88, 10 N. W. 15;Hill v. Surety Co., 107 Wis. 19, 28, 34, 81 N. W. 1024. But, if an examination of the evidence discloses with reasonable certainty a preponderance in favor of the plaintiff's contention, it is our duty to direct judgment in accordance therewith. Maldaner v. Smith, 102 Wis. 30, 41, 78 N. W. 140;Hamilton v. Quarry Co., 106 Wis. 352, 81 N. W. 876; Hill v. Surety Co., supra. We proceed, therefore, to an examination of the evidence.

Mr. Cleary's testimony as to the only interview in which authority was given is as follows: “He told me to sell it if I could, and gave me the prices upon the property. The price on the back lot that McBride bought was fifteen hundred dollars, and on the front lot upon which his (Griswold's) house stood it was thirty-five hundred dollars. My commission was to be...