Grinde v. Chipman

• Decision Date: 15 November 1921
• Citation: 185 N.W. 288,175 Wis. 376
• Parties: GRINDE v. CHIPMAN.
• Court: Wisconsin Supreme Court

175 Wis. 376

185 N.W. 288

GRINDE

v.CHIPMAN.

Supreme Court of Wisconsin.

Nov. 15, 1921.

Syllabus by the Court.

The words “to sell” and “to sell or find a buyer” in a real estate brokerage contract are synonymous terms.

A broker who is employed to procure a purchaser for real estate performs his contract and is entitled to his compensation when he produces a person ready, willing, and able to purchase upon the terms specified by the owner in the brokerage contract.

The authority conferred upon a broker by an agreement which employs him “to sell” does not authorize him either to execute a conveyance of the premises, or to enter into an agreement to convey. (Brown v. Griswold, 109 Wis. 284, 85 N. W. 363, distinguished.)

Additional Syllabus by Editorial Staff.

Where a broker, employed “to sell” land including a homestead, procured a purchaser ready, willing, and able to buy on the terms specified, but the principal's wife refused to join in the conveyance, held that the broker was entitled to his commission, the words “to sell” in the contract of employment being synonymous with “to procure a purchaser.”

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by Arthur Grinde against W. R. Chipman. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover brokerage commission for the sale of real estate. Plaintiff was employed by the defendant to sell his farm, consisting of 320 acres, which included the homestead upon which he lived. The plaintiff secured a purchaser for the farm, with whom he entered into a contract of sale. The purchaser was ready, able, and willing to comply with the terms of the said contract of sale on his part. Defendant's wife refused to sign the agreement of sale, and refused to sign a deed pursuant thereto; consequently the sale was not consummated. This action was brought by plaintiff to recover his commission under the brokerage contract with defendant, and from a judgment in favor of the plaintiff the defendant appeals.H. E. Andrews, of Portage, for appellant.

Robert N. Nelson, of Madison, for respondent.

OWEN, J. (after stating the facts as above).

The only difference between this case and Mackenzie v. Staudenmayer, 184 N. W. 286, decided herewith, is that in this case the broker was employed “to sell” the farm, while in that case the employment was “to sell or find a buyer.” This case is therefore ruled by the decision in the Mackenzie Case in all respects, unless the dissimilarity of the language in the brokerage contract above noted compels a different result.

[1][2][3] It is well settled that a broker who is employed to procure a purchaser for real estate performs his contract and is entitled to his commission when he produces a person ready, willing, and able to purchase upon the terms specified by the owner in the brokerage contract. It is contended, however, that the rule is different where the employment of the broker is “to sell.” It is said that Pederson v. Johnson, 169 Wis. 320, 172 N. W. 723, so holds. The question there was whether the broker was entitled as against the owner, his principal, to $1,000 earnest money paid by a prospective buyer upon an option agreement given to such prospective buyer by the agent in the name of his principal which was not carried out by the prospective buyer. In the opinion it is said that--

“The defendant never sold the premises and never became entitled to any commission.”

The question whether he would have been entitled to a commission had he produced a buyer ready, willing, and able to take the land upon the terms specified by the owner was not considered, for the reason that his prospective purchaser did not perform the contract of purchase, and no sale of the premises was ever consummated. By the great weight of authority, the words “to sell” or “to procure a purchaser” are synonymous terms when used in a real estate brokerage contract or listing agreement. Carstens v. McReavy, 1 Wash. 359, 25 Pac. 471;York v. Nash, 42 Or. 321, 71 Pac. 59;Armstrong v. Lowe, 76 Cal. 616, 18 Pac. 758;Lindley v. Keim, 54 N. J. Eq. 418, 34 Atl. 1073;Morris v. Ruddy, 20 N. J. Eq. 236;Stengel v. Sergeant, 74 N. J. Eq. 20, 68 Atl. 1106;Jones v....