Hale v. Kreisel

• Decision Date: 13 September 1927
• Citation: 194 Wis. 271,215 N.W. 227
• Parties: HALE ET AL. v. KREISEL ET AL.
• Court: Wisconsin Supreme Court

194 Wis. 271

215 N.W. 227

HALE ET AL.

v.KREISEL ET AL.^a1

Supreme Court of Wisconsin.

Sept. 13, 1927.

Appeal from Chippewa County Court; T. J. Connor, Judge.

Action by Walter L. Hale and another, copartners, against Rude Kreisel and others, copartners. Judgment for plaintiffs, and defendants appeal. Reversed and cause remanded, with directions.--[By Editorial Staff.]

Rude Kreisel, E. O. Wright, and B. F. Crane, as copartners, appeal from a judgment against them for the reasonable value of services performed by Walter L. Hale and William N. Hebert, as real estate brokers.

The original complaint was upon contract to recover for services performed by the plaintiffs, as real estate brokers. Upon the trial it appeared that the contract for the performance of such services was not in writing. Thereupon the court permitted the plaintiffs to amend their complaint to set up a cause of action upon quantum meruit.Alexander Wiley and Robert L. Wiley, both of Chippewa Falls, for appellants.

P. J. Murphy, of Chippewa Falls, for respondents.

STEVENS, J.

Section 240.10 of the Statutes provides:

“Every contract to pay a commission to a real estate agent or broker or to any other person for selling or buying real estate or negotiating lease therefor for a term or terms exceeding a period of three years shall be void unless such contract or some note or memorandum thereof describing such real estate, expressing the price for which the same may be sold or purchased, or terms of rental, the commission to be paid and the period during which the agent or broker shall procure a buyer or seller or tenant, be in writing and be subscribed by the person agreeing to pay such commission.”

The fundamental question presented by this appeal is whether the Legislature by the passage of this act has prevented recovery upon quantum meruit for services performed in buying or selling real estate when no contract in writing has been made as required by this section.

[1] This statute clearly expresses the legislative intent that there shall be no recovery for such services in the absence of such a written contract. This statute is an extension or enlargement of the statute of frauds. It is as valid an exercise of the police power as are any of the other provisions of the statute of frauds which require certain contracts to be in writing. Selvage v. Talbott, 175 Ind. 648, 95 N. E. 114, 33 L. R. A. (N. S.) 973, 974, 975, Ann. Cas. 1913C, 724.

“The statute was doubtless enacted for reasons similar to those which led to the enactment of the statute of frauds. It was to prevent frauds and perjuries. Its enforcement will sometimes protect brokers who have rendered valuable services too little appreciated. More often it will protect owners from unfounded claims. It will tend to prevent the flood of litigation arising out of misunderstandings between well meaning persons. We believe that in order to carry out the legislative intent we should hold contracts void which do not substantially comply with the statute. In other words, that the statute means what it says.” Gifford v. Straub, 172 Wis. 396, 399, 400, 179 N. W. 600. See, also, Danielson v. Goebel, 71 Neb. 300, 98 N. W. 819, 820;Selvage v. Talbott, 175 Ind. 648, 95 N. E. 114, 33 L. R. A. (N. S.) 973, 975, Ann. Cas. 1913C, 724.

To hold that there can be recovery upon quantum meruit is “to open the door to the very abuses the statute was enacted to prevent, and defeat its manifest purpose.” Barney v. Lasbury, 76 Neb. 701, 107 N. W. 989, 991.

[2] When this question was presented in Seifert v. Dirk, 175 Wis. 220, 184 N. W. 698, 17 A. L. R. 885, this court held that there could be a recovery on quantum meruit, basing its decision upon the rule that had been applied in cases arising under other provisions of the statute of frauds where recovery was had for services rendered under contracts which were void under the statute of frauds. The fact that practically every court that has considered this question under legislative enactments similar to section 240.10 of the Statutes has held that there can be no recovery upon quantum meruit has led this court to carefully reconsider the question. That consideration has led to the conclusion that the rule in Wisconsin must be brought into harmony with the clear intent of the Legislature, and also into...