Micek v. Wamka

• Decision Date: 13 February 1917
• Docket Number: No. 156.,156.
• Citation: 165 Wis. 97,161 N.W. 367
• Parties: MICEK ET AL. v. WAMKA ET AL.
• Court: Wisconsin Supreme Court

165 Wis. 97

161 N.W. 367

MICEK ET AL.

v.WAMKA ET AL.

No. 156.

Supreme Court of Wisconsin.

Feb. 13, 1917.

Appeal from Circuit Court, Brown County; Henry Graass, Judge.

Action by J. Micek and others against Agnes Wamka and others. From a judgment dismissing plaintiffs' complaint, they appeal. Judgment reversed, and cause remanded for new trial.

Action by real estate brokers to recover commission. Plaintiffs sued to recover from the defendants the sum of $300, which they claim as a commission for the sale or disposition of defendants' farm. At the close of defendants' testimony the court granted their motion for nonsuit, and judgment was rendered and entered dismissing plaintiffs' complaint.

After alleging that plaintiffs were copartners engaged in the real estate brokerage business, the complaint sets forth:

“That on or about the 15th day of April, A. D. 1913, the above-named defendants employed the above-named plaintiffs to find them a purchaser or trade for their farm and personal property located in the town of Bellevue, Brown county, Wis., satisfactory to the defendants, and that in the event that the plaintiffs found a purchaser, or were the procuring cause in getting either a trade or sale of the farm and personal property thereon, or instrumental in any way in finding such purchaser, the plaintiffs were to receive as their commission the sum of $300. That the above-named plaintiffs did actually procure a purchaser who was ready, willing, and able to buy and take said personal property at a price satisfactory to the defendants, and on the 5th day of May, A. D. 1913, a written contract was entered into wherein and whereby the said defendants agreed to convey to one James Wilson the property owned by the defendants, and in consideration thereof the said James Wilson was to convey certain property which he owned in the city of Chicago, and assume the mortgage on the farm owned by the defendants, all of the terms of which contract was reduced to writing and signed by the defendants and the said James Wilson, deeds to be executed within 15 days from the date of said contract, and it was further agreed in any by said contract so reduced in writing that the defendants were to pay to the plaintiffs the sum of $300 for their commission in closing said deal and in finding a buyer as hereinbefore stated. That the plaintiffs have performed all the terms and conditions on their part to be performed under said agreement with the defendants to find them a purchaser, and are entitled to the sum of $300 commission, which the defendants now refuse to pay, although often demanded.”

Defendants answered, admitting that the plaintiffs were copartners, and generally denied the allegations of the complaint, excepting as specifically admitted:

“Defendants admit that on May 5th they entered into a certain agreement in writing with one James Wilson for the exchange of certain properties, which properties were described in said written contract, but defendants allege that in and by the terms of said written contract it was stipulated and agreed that the plaintiffs herein were to receive no commission unless the exchange of properties described in said contract was actually made, and defendants allege the fact to be that the exchange of properties provide for in said written contract was never made, and that they are in no manner or in any sum whatsoever indebted to plaintiffs herein.”

The case was tried by the court and a jury. Upon the trial plaintiffs offered evidence tending to show that they had been employed by defendants as real estate brokers; that in pursuance of such employment they procured a purchaser for the farm owned by defendants; that after some negotiations a contract of exchange was entered into between the defendants and the purchaser produced by the plaintiffs, which contract was executed by the defendants, and the purchaser and delivered. The contract was a carefully prepared document, dated May 5, 1913, described in detail the property which was to be exchanged by the defendants with the purchaser, James Wilson, provided for an exchange of abstracts within 10 days from the date of the contract, and that each party should pay his own commission, attorney's fees, and all other costs incident to the negotiations, and contained the following clause in regard to brokerage fees:

“Brokerage fees to be paid as follows, to wit: Party of the first part to pay Micek & Co., three hundred dollars ($300). Party of the second part to pay Micek & Co., two hundred dollars ($200), and to be paid at the time of closing said exchange. This contract to be held in escrow by Micek & Co., for the mutual benefit of the parties hereto. All deeds to be passed and this negotiation to be closed within fifteen days from the date of this agreement. Time is hereby declared to be of the essence of this agreement.”

From the testimony it appeared that after the contract of exchange had been made, a barn situated upon the premises owned by the defendants burned, and for some reason, which does not clearly appear, the defendants refused to cary out their contract with the purchaser Wilson, it being intimated that they refused to do so because the plaintiffs would not reduce the amount of commission to be paid them. Plaintiffs then rested, and defendants moved for a nonsuit. In fairness to the trial court ...