McArthur v. Slauson

• Decision Date: 27 September 1881
• Citation: 53 Wis. 41,9 N.W. 784
• Parties: MCARTHUR v. SLAUSON.
• Court: Wisconsin Supreme Court

53 Wis. 41

9 N.W. 784

MCARTHUR

v.SLAUSON.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Racine county.

Henry L. Buxton, for respondent.

Jenkins, Elliott & Winkler and H. V. Van Pelt, for appellant.

COLE, C. J.

We think there must be a new trial in this case on account of the error in that part of the charge which will presently be noticed, and which was excepted to by the defendant. The complaint is founded on an express contract whereby the defendant agreed to pay the plaintiff $500 as a broker for services performed in and about the sale for the defendant of a certain mortgage and tax certificates. The plaintiff claims that he was employed by the defendant to find a purchaser of these securities, and that when he did so he was entitled to receive the above sum as compensation for his services. On the other hand, the defendant claims and insists that the contract was that he should pay the plaintiff the above sum, providing the latter found and produced a purchaser of these securities at a price equal to or greater than the full amount due upon them. The amount due upon the securities, according to their face, was about $12,800. They were sold by the defendant for $11,000. Now, according to the terms of the employment as claimed by the defendant, it is clear that the plaintiff would only be entitled to recover the stipulated sum when he produced a purchaser ready and willing to purchase the securities at their face value. This principle is well settled in the law. Indeed, its soundness was not questioned on the argument. And the learned circuit judge did in fact charge the jury that if they should find from the evidence that this was the contract between the parties, then, before the plaintiff could recover anything, he must produce to the defendant a purchaser who was willing and ready to pay the whole amount due on the mortgage and tax certificates. But in connection with this charge, and in limitation or qualification of it, the court further instructed as follows:

“If, however, you find from the evidence that before the sale was made the plaintiff informed the defendant that Smith and Hewitt” (who were the purchasers) “were the men he had found to purchase the mortgage, and that after such information the defendant went and made the sale, that would be a waiver on the part of the defendant of any stipulation in regard to what price the property should be sold for in the original contract between the parties.”

We think this charge in respect to waiver was calculated to mislead to the prejudice of the defendant. On that question the instruction should have been that in case the jury found that the plaintiff contracted to produce a person able and willing to purchase the securities at their face value, and he did produce such a purchaser, then, if the defendant, with knowledge of the fact, went and sold the securities for a less sum, that this would amount to a waiver on his part of the stipulation as to price in the original contract. The contract being as claimed by the defendant, then performance required the plaintiff to produce a purchaser able and willing to pay the full face...