Hooker v. Hyde
| Decision Date | 14 October 1884 |
| Citation | 21 N.W. 52,61 Wis. 204 |
| Parties | HOOKER v. HYDE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Outagamie county.
After alleging that the defendant owned a large tract of land in certain counties of this state, of great value, which he was anxious to sell, and that the plaintiff was a woodsman of experience and acquainted with such lands, the complaint proceeds as follows: “That on or about the twentieth day of March, 1879, the said defendant desired this plaintiff to assist him in the sale of the aforementioned lands, and then and there promised this plaintiff if said tract of land, amounting to about thirteen thousand acres, was sold to the parties who were then negotiating for the purchase of same, defendant would pay to plaintiff the sum of one thousand dollars; that thereupon plaintiff and defendant entered into an agreement whereby plaintiff agreed to use his best efforts to effect such sale, and defendant agreed, in case such sale was made, he, defendant, would pay plaintiff the sum of one thousand dollars; that plaintiff has fully performed all the conditions of the said agreement on his part to be performed; that said lands were, within about sixty days from the time of entering into such agreement, sold to the parties so desiring to purchase the same; that thereupon there became due to this plaintiff from said defendant the sum of one thousand dollars; that no part of same has been paid except the sum of five hundred dollars; that demand has often been made of said defendant for the payment of the balance due, but same has not been paid, nor any part thereof.” Judgment is demanded for $500 and interest.
The answer of the defendant, after admitting his ownership of such lands, and his desire to sell the same, proceeds as follows: “Further answering, this defendant alleges that on or about the twentieth day of March, 1879, this defendant was negotiating with certain parties for the sale to them of the lands mentioned in the plaintiff's complaint, and that at or about said time this defendant entered into an agreement with the plaintiff whereby the said plaintiff promised and agreed to devote his time and services, and to use his best efforts, to bring about the sale of said lands to said parties, and this defendant agreed to pay to said plaintiff, in case such sale was made, in full consideration for the services to be rendered by said plaintiff as aforesaid, the sum of five hundred dollars; that about sixty days after said agreement was made, as aforesaid, such sale was consummated, and thereafter, to-wit, on or about the first day of September, 1879, this defendant duly paid to the plaintiff said sum of five hundred dollars, which said sum was then and there paid by this defendant, and received, accepted, and retained by the plaintiff as and for a full and complete payment and satisfaction for the services of said plaintiff in and about said sale, under said agreement, and for all claims and demands whatsoever by said plaintiff against this defendant; and, save and except as hereinbefore admitted, qualified, or explained, this defendant denies each and every allegation of the plaintiff's complaint herein.” The testimony and rulings of the court on the trial are sufficiently stated in the opinion. The court directed the jury to return a verdict for the plaintiff for the amount claimed, which they accordingly did. A motion for a new trial was denied, and judgment for the plaintiff entered pursuant to the verdict. The defendant appeals from the judgment.Weisbrod & Harshaw, for respondents.
John Goodland, for appellants.
The contract alleged in the complaint, upon which this action is founded, is that on March 20, 1879, the plaintiff agreed to use his best efforts to enable the defendant to make sale of a tract of pine land, belonging to the latter, to certain persons then negotiating therefor, in consideration whereof the defendant agreed to pay the plaintiff $1,000 for his services in case such sale was effected. The answer of the defendant admits the making of the contract stated in the complaint at or about the time therein stated, except it is alleged that the price stipulated therein for plaintiff's services was but $500. It is also substantially admitted in the answer, and not controverted by any testimony, that the plaintiff rendered the service required by the contract, and that the sale of such lands to the persons referred to in the contract was consummated. The complaint admits the payment by the defendant to the plaintiff of $500 on account of such services, and the answer alleges that the same was received by the plaintiff in full payment and satisfaction therefor. The parties thus agreeing upon all the terms of the contract, except the amount of plaintiff's compensation, also that the plaintiff had earned the stipulated compensation and had been paid $500 on account thereof, and the validity of the contract being unimpeached, the principal if not the only question of fact put in issue by the pleadings is whether the compensation therein stipulated for the plaintiff's services is $1,000 or only $500.
To prove his version of the contract, the plaintiff introduced a letter of the defendant, written to and received by him before he rendered such services, which reads as follows:
“APPLETON, March 20, 1879.
J. C. Hooker--DEAR SIR: I have been talking with some men in Fort Madison, Iowa, by the name of S. Atlie, J. C. Atlie, and W. H. Kitsinger, of selling them my East Fork pine land. If you will help me about the matter, and I succeed in making the trade with these men, I will pay you $1,000, and all the time you spend in showing it up. Provided we do not sell, I will give you $2 a day. Now this is on condition that we sell the whole tract, 12,800 acres, or about that amount. Of course, I pay you for your time in any event.
WELCOME HYDE.”
That this letter, and the acceptance by the plaintiff of the proposition therein contained, which acceptance is evidenced by the rendition of the proposed services, constitutes, at least in form, a contract in writing between the parties, cannot be doubted. Lowber v. Connit, 36 Wis. 176;Hutchinson v. Railway Co. 37 Wis. 582, 601;Hubbard v. Marshall, 50 Wis. 322;S. C. 6 N. W. REP. 497. But the defendant sought to prove that it did not express the true contract in respect to the plaintiff's compensation. The real contract in that behalf he claimed vested in parol, and was made before the letter was written. He testified that, included in the $1,000 named in the writing, was $500 to be paid to one Butterfield, and, if not so used, the plaintiff was to return that amount to him if already paid to the plaintiff. Also that the plaintiff informed him that Butterfield refused to take the money. In all other respects the written contract contains the terms of the alleged precedent parol contract.
Under the facts above stated, we are...
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