McCune v. Badger
| Decision Date | 14 November 1905 |
| Citation | 126 Wis. 186,105 N.W. 667 |
| Parties | MCCUNE v. BADGER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.
Action by Thomas J. McCune against Lura A. Badger. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Action to recover a commission for the sale of real estate alleged to have been earned by plaintiff.
Plaintiff claimed that in October, 1899, defendant, who was then the owner of a farm consisting of the North East one-quarter of Sec. No. 14, Township No. 18 North of Range 15 East in Winnebago county, Wisconsin, except one and one-half acres in the South East corner thereof; and also the owner of certain farm machinery, live stock and other personal property for use and in use on such farm, promised plaintiff that in case of his producing a person willing and able to purchase such property he should have for his services all obtainable over $8,000, for the land, and all over $9,000, obtainable for the entire property, she to pay him such excess whenever he should produce a purchaser ready, willing and able to take the property at any sum in excess of the stipulated net price; that April 18th, 1902, he produced Gustave Pansie, a proposed purchaser, who was willing and able and who offered and agreed to pay $11,095, for the real estate, and requested defendant to make a deed accordingly, which she refused to do. Plaintiff prayed for judgment in the sum of $3,095, and costs.
The defendant answered admitting that plaintiff was appointed agent to sell the farm mentioned for $9,000, his compensation in case of a sale to be such sum as he might obtain therefor in excess of that sum. She further answering put in issue plaintiff's allegations as to his obtaining a purchaser for the property ready, willing and able to take the same upon any terms acceptable to her, or which she had at any time stated to him she would accept, and alleged that April 8th, 1902, she terminated the agency by notifying plaintiff of the revocation of his authority. At the colse of plaintiff's evidence the court directed a verdict in favor of the defendant and judgment was rendered accordingly. The plaintiff appealed.Hume & Ollerich (M. H. & L. K. Eaton, of counsel), for appellant.
Barbers & Beglinger (A. E. Thompson, of counsel), for respondent.
MARSHALL, J. (after stating the facts).
Was there credible evidence from which the jury might reasonably have found that plaintiff produced a person ready and able to take respondent's property on the terms he was authorized by her to offer the same for sale, before she revoked his authority? It is conceded that there was not if there was no evidence tending to show that Stevenson, whom he claims he notified of his having found such a purchaser, was respondent's agent in the matter. It is claimed on the part of respondent that no such evidence was produced, or even tending to prove that appellant was able at any time to present a purchaser willing and able to take the property on the terms stipulated for before his authority was terminated.
It is elementary that upon a motion for a verdict the trial court is required to determine as a question of fact whether conflicting reasonable inferences may fairly be drawn from the evidence, some supporting a finding one way and some the other. It is the exclusive province of the court to solve such a question. In case of its solution in the affirmative, it is the exclusive province of the jury to determine the weight of the probabilities. The court in passing upon the question for it to determine is required to give to the evidence all the weight it will reasonably bear against the motion. The conclusion reached when challenged upon appeal cannot properly be cast aside and the evidence viewed regardless thereof. It is to be viewed from the proper viewpoint of the trial court, so far as practicable, bearing in mind that such court ordinarily possessessome advantages in discovering the right of such a matter over an appellate...
To continue reading
Request your trial
-
Slam v. Lake Superior Terminal & Transfer Ry. Co.
...Co., 110 Wis. 461, 86 N. W. 153;Nicoud v. Wagner, 106 Wis. 67, 81 N. W. 999;Bohn v. Racine, 119 Wis. 341, 96 N. W. 813;McCune v. Badger, 126 Wis. 186, 105 N. W. 667;Hodge v. Smith, 130 Wis. 326, 110 N. W. 192;Nolan v. Kroening, 130 Wis. 79, 109 N. W. 963;Fleming v. Northern T. P. M., 135 Wi......
-
Sloan v. Chi., M. & St. P. Ry. Co.
...N. W. 877;Lines v. Milwaukee, 147 Wis. 546, 133 N. W. 592;Collins v. Janesville, 117 Wis. 415, 423, 425, 94 N. W. 309;McCune v. Badger, 126 Wis. 186, 189, 105 N. W. 667;Fleming v. Northern, etc., Co., 135 Wis. 157, 114 N. W. 841, 15 L. R. A. (N. S.) 701; “considerable reliance,” Lind v. Uni......
-
City of Marinette v. Goodrich Transit Co.
...jury. Nolan v. Kroening, 130 Wis. 79, 109 N. W. 963;Murdock v. Beloit, D. L. & J. Ry. Co., 147 Wis. 100, 132 N. W. 979;McCune v. Badger, 126 Wis. 186, 105 N. W. 667;Slam v. Lake Superior T. & T. Ry. Co., 140 N. W. 30. [6] A very vigorous contention is made by counsel for appellant to the po......
-
Kroger v. Cumberland Fruit Package Co.
...yet an affirmance follow, since to warrant a reversal it must appear that the decision complained of is clearly wrong. McCune v. Badger, 126 Wis. 186, 105 N. W. 667. As there said “the law rendering it obligatory to decide the question of fact upon a motion for a nonsuit or a verdict in vie......