Huchting v. Rahn

• Decision Date: 05 December 1922
• Citation: 190 N.W. 847,179 Wis. 50
• Parties: HUCHTING v. RAHN.
• Court: Wisconsin Supreme Court

179 Wis. 50

190 N.W. 847

HUCHTING

v.RAHN.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by Arnold L. Huchting against Arthur J. Rahn. Judgment for defendant, and plaintiff appeals. Affirmed.

The plaintiff, being a licensed real estate broker in the city of Milwaukee, on the 8th day of December, 1920, entered into a written contract with the defendant, of the following tenor, to wit:

“Owner, Arthur J. Rahn. Date, December 8, 1920. Address, 3109 Lisbon avenue.

Arnold L. Huchting, 473 Sixth Avenue, Milwaukee, Wisconsin: You are hereby given exclusive authority to sell the property described on this sheet for fifteen thousand five hundred dollars. In case of sale you are authorized to sign memorandum of sale as agent. I agree to pay a commission to you of five per cent. of the sale price of the property, if sold or exchanged before this agreement is terminated, regardless of who negotiates the sale. This agreement is in full force and effect until July 1, 1921.

Arthur J. Rahn. [Seal.]

Above sale agency is herewith accepted by Arnold L. Huchting.”

No copy of the contract having been delivered to the defendant, and he, laboring under the impression that the aforesaid exclusive agency contract had expired, made an exchange of his property, which exchange was effected upon the basis of a valuation of $15,000, and the plaintiff, thereafter hearing of such exchange, demanded commissions, claiming that he had performed his part of the contract, and that under the terms thereof the commissions became due him. Upon defendant's refusal to pay plaintiff's claim for commissions, suit was brought in the civil court of Milwaukee county. The action was tried before a jury, the court submitting but one jury question in the special verdict, as follows:

“Did the plaintiff make a bona fide attempt to carry out the terms of his contract with the defendant?”

Which question the jury answered in the negative.

Before submitting the case to the jury both the counsel for the plaintiff and the defendant made motions, respectively, for a directed verdict, but the court, notwithstanding such motions, submitted the foregoing question, and upon the answer of the jury directed judgment in favor of the defendant and against the plaintiff, dismissing plaintiff's complaint with costs. Upon an appeal to the circuit court, the cause having been heard upon the record, such court affirmed the judgment of the civil court.

It appears from the evidence of the plaintiffthat shortly after the contract was executed he prepared a special “For sale” sign, which he left with the defendant, but which the defendant refused to have exhibited upon the premises, whereupon plaintiff removed such sign. It also appears from such evidence that plaintiff attempted to interest one Woodbury to purchase the property, but that the latter was financially unable to purchase; that he also submitted the proposition to two real estate men, namely, one Knoblock and one Goff, without producing any results. He also testified that he submitted the matter to other real estate men, the names of none of whom he could recall. This, in substance, represents the total efforts of the plaintiff in the matter of his agency.

Defendant, in substance, testified that, with the exception of the attempt to advertise the property by means of the “For sale” sign aforesaid, he knew and was informed of no effort on the part of the plaintiff during the entire period to sell the property in question.

John J. Krizek, of Milwaukee, for appellant.

Rubin, Wurster & Rouiller, of Milwaukee (C. F. Rouiller, of Milwaukee, of counsel), for respondent.

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

[1][2] Plaintiff's first assignment of error is based upon the refusal of the court to grant his motion for a directed verdict. The contract in question is not the usual real estate agency contract. Ordinarily, an agent is not entitled to a commission where his efforts have proven unsuccessful. His reward comes only with success. He may be ever so active, and even expend a large sum of money in an effort to procure a purchaser, but if he fails, the loss is solely his, and he loses the labor and effort which was staked upon success. On the other hand, the slightest effort, resulting in success, entitles the agent to his commission. Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 38 Am. Rep. 441. Under such a contract, the agent is vested with a large discretionary power with respect to the efforts to be made and the means to be employed in procuring a purchaser.

During recent years the use of the exclusive agency contract has become quite frequent, and such...