Litts v. Morse

• Decision Date: 14 March 1911
• Citation: 130 N.W. 460,145 Wis. 472
• Parties: LITTS ET AL. v. MORSE.
• Court: Wisconsin Supreme Court

145 Wis. 472

130 N.W. 460

LITTS ET AL.

v.MORSE.

Supreme Court of Wisconsin.

March 14, 1911.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by W. J. Litts and another against F. A. Morse. From a judgment for plaintiffs, defendant appeals. Affirmed.

Plaintiffs allege that in the fall of 1906 they entered into an agreement with the defendant, whereby the defendant agreed to pay to the plaintiffs the sum of $500 commission in the event of their securing a purchaser at a stated price for defendant's hotel property in the city of Elkhorn. The complaint also alleges that the defendant agreed to take in exchange for such property improved or unimproved western lands; that thereafter plaintiffs secured the Burchard-Hurlbut Land Company as a purchaser, brought the parties together, and a sale resulted. The answer of the defendant was a general denial of the allegations of the complaint. On the trial defendant asked permission to amend his answer so as to set up as a defense the fact that plaintiffs were in the employment of the party who purchased defendant's property, and received a commission from such purchaser, and that the plaintiffs acted for the purchaser adversely to the interests of the defendant. The court refused to permit such amendment. Testimony was introduced, however, tending to prove defendant's contention in this regard. Upon a verdict for the plaintiffs for $500 and costs, judgment was entered, from which judgment this appeal is taken.Edwin T. Cass, for appellant.

J. J. Cunningham, for respondents.

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

The defendant contends (1) that the verdict rendered is not supported by the evidence, and (2) that the plaintiffs cannot recover, because they acted as the agents of both parties to the transaction.

1. The plaintiff Francis testified to the making of the contract, the substance of which is contained in the statement of facts. The defendant denied that such contract was made. On this disputed testimony the jury found for the plaintiffs and its verdict is conclusive in this court.

2. The evidence quite clearly shows that the plaintiffs acted in the capacity of middlemen, and not as agents of the defendant. Such being the situation, they were entitled to recover the commission agreed upon. Tasse v. Kindt, 128 N. W. 972, and cases cited.

Judgment affirmed.

SIEBECKER, J., took no part.