Purtell v. Tehan

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCURRIE; GORDON
Citation29 Wis.2d 631,139 N.W.2d 655
PartiesEdward A. PURTELL, d/b/a Edward A. Purtell Co., et al., Respondents, v. Eugene TEHAN et al., Defendants, Morris J. Hack et al., Appellants.
Decision Date01 February 1966

Page 655

139 N.W.2d 655
29 Wis.2d 631
Edward A. PURTELL, d/b/a Edward A. Purtell Co., et al., Respondents,
v.
Eugene TEHAN et al., Defendants,
Morris J. Hack et al., Appellants.
Supreme Court of Wisconsin.
Feb. 1, 1966.

[29 Wis.2d 633]

Page 656

Action by plaintiffs Edward A. Purtell, d/b/a Edward A. Purtell Co. and Melvin B. Raskin against defendants Eugene Tehan; Charlotte Tehan, his wife; Morris J. Hack; and Harold Sampson; for conspiracy to cause the Tehans to breach their real estate listing contract with Purtell.

The complaint originally also contained a second cause of action in which a real estate commission was sought to be recovered by plaintiffs on the basis that Purtell had fully performed the listing contract which had been entered into between him and the Tehans. The plaintiffs moved for a voluntary nonsuit as to this cause of action but the circuit court dismissed this cause of action on the merits.

Defendants Hack and Sampson separately demurred to the complaint, prior to the dismissal of the second cause of action, on the grounds that it failed to state facts sufficient to constitute a cause of action and that several [29 Wis.2d 634] causes of action were improperly united. The dismissal of the second cause of action eliminated the basis for the last mentioned ground of demurrer.

The complaint as it now stands, after elimination of the second cause of action, alleges in part as follows: On May 16, 1960, Eugene Tehan, who was the owner of certain described premises, entered into a listing contract with Purtell, a real estate broker, which contract was subsequently modified and extended by a writing signed by Tehan, Mrs. Tehan, and Purtell. Purtell contracted with Raskin, also a real estate broker, to divide with him $15,000 commission provided for in the listing contract if Raskin found an acceptable buyer for the premises. Hack, also a real estate broker, acted as agent for Sampson in the purchase of the premises.

Page 657

Paragraph 9 of the complaint reads:

'That the Defendants conspired to defraud the Plaintiffs of their just commission due pursuant to said contracts and other writing and memorandums and oral agreements between the brokers and the parties, on information and belief, said conspiracy and fraud being committed as follows: That the Defendants did jointly and/or severally set up certain conditions, on information and belief, above and beyond the basis terms of sale. That on further information and belief, the sellers and/or their agents, did refuse to comply with conditions demanded by the buyers; that on further information and belief, subsequent thereto, the identical parties entered into the sale under identical conditions arranged by the Plaintiff brokers, eliminating the conditions referred to, thereby defrauding and attempting to deprive the Plaintiff brokers of their just commissions.'

The complaint further alleges that plaintiffs were damaged in the sum of $15,000 and the prayer requests damages in that amount.

The circuit court determined that the complaint did state facts sufficient to constitute a cause of action and by order dated May 11, 1965, overruled the demurrers. Hack and Sampson have appealed therefrom.

[29 Wis.2d 635] Levin & Levin, Milwaukee, James S. Levin, Milwaukee, of counsel, for appellants.

Blumenthal, Herz & Scholl, Milwaukee, Harold Harris, Milwaukee, of counsel, for respondents.

CURRIE, Chief Justice.

This issues on this appeal are:

(1) Is the allegation that 'a listing contract' was entered into between Eugene Tehan and Purtell sufficient to permit such allegation to be construed as a valid real estate broker's agreement which contains the provisions required by sec. 240.10, Stats.?

(2) If the allegation with respect to the listing contract is held to be sufficient, do the allegations of paragraph 9 of the complaint spell out a cause of action against the two appellants, Hack and Sampson?

(3) May the agent Hack be sued inasmuch as the complaint discloses that plaintiffs knew he was acting as agent for his principal Sampson?

(4) May the dismissal of the second cause of action be considered in passing on the issue of whether the demurrer should be sustained to the first cause of action?

Allegations With Respect to Listing Contract.

Respondents concede that the existence of a valid listing contract between Eugene Tehan and Purtell is an essential prerequisite to their complaint stating a cause of action against appellants Hack and Sampson. Sec. 240.10, Stats., provides:

'Every contract to pay a commission to a real estate agent or broker or to any other person for selling or buying real estate or negotiating lease therefor for a term or terms exceeding a period of three years shall be void unless such contract or note or memorandum thereof describing such real estate,...

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23 practice notes
  • Matter of Central Watch, Inc., Bankruptcy No. 80-02639
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Eastern District of Wisconsin
    • July 28, 1982
    ...598 (Wis.1978); Pure Milk Products Corp. v. National Farmers Organization, 64 Wis.2d 241, 257, 219 N.W.2d 564 (1974); Purtell v. Tehan, 29 Wis.2d 631, 639, 139 N.W.2d 655, 659 (1966); Mendelson v. Blatz Brewing Co., 9 Wis.2d 487, 101 N.W.2d 805 24 Restatement (Second) of Torts § 766 (1979).......
  • Grube v. Daun, Nos. 91-2312
    • United States
    • Court of Appeals of Wisconsin
    • November 11, 1992
    ...principal's interests, or where the principal owes no duty or less than the normal duty of care to the person harmed. Purtell v. Tehan, 29 Wis.2d 631, 639, 139 N.W.2d 655, 659 (1966) (quoting RESTATEMENT (SECOND) OF AGENCY § 343 (1957)). Therefore, Thiel could be liable in tort for his acti......
  • Chrysler Corp. v. Lakeshore Commercial Finance Corp., No. 73-C-488.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 6, 1975
    ...237 N.W. 85, 238 N.W. 626 (1931). It delineated the elements of such cause of action in its decision in the case of Purtell v. Tehan, 29 Wis.2d 631, 638, 139 N.W.2d 655, 659 "The essential elements of a cause of action for inducing a breach of contract are set forth in Restatement, 4 T......
  • McWilliams v. Guzinski, No. 77
    • United States
    • United States State Supreme Court of Wisconsin
    • January 20, 1976
    ...we must permit 'all reasonable inferences' from the allegations in the construction of a complaint on demurrer (Purtell v. Tehan (1966), 29 Wis.2d 631, 139 N.W.2d 655), the inference that the unlocked gate made the pool accessible to his four-year-old child either because it was in fact ope......
  • Request a trial to view additional results
23 cases
  • Matter of Central Watch, Inc., Bankruptcy No. 80-02639
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Eastern District of Wisconsin
    • July 28, 1982
    ...598 (Wis.1978); Pure Milk Products Corp. v. National Farmers Organization, 64 Wis.2d 241, 257, 219 N.W.2d 564 (1974); Purtell v. Tehan, 29 Wis.2d 631, 639, 139 N.W.2d 655, 659 (1966); Mendelson v. Blatz Brewing Co., 9 Wis.2d 487, 101 N.W.2d 805 24 Restatement (Second) of Torts § 766 (1979).......
  • Grube v. Daun, Nos. 91-2312
    • United States
    • Court of Appeals of Wisconsin
    • November 11, 1992
    ...principal's interests, or where the principal owes no duty or less than the normal duty of care to the person harmed. Purtell v. Tehan, 29 Wis.2d 631, 639, 139 N.W.2d 655, 659 (1966) (quoting RESTATEMENT (SECOND) OF AGENCY § 343 (1957)). Therefore, Thiel could be liable in tort for his acti......
  • Chrysler Corp. v. Lakeshore Commercial Finance Corp., No. 73-C-488.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 6, 1975
    ...237 N.W. 85, 238 N.W. 626 (1931). It delineated the elements of such cause of action in its decision in the case of Purtell v. Tehan, 29 Wis.2d 631, 638, 139 N.W.2d 655, 659 "The essential elements of a cause of action for inducing a breach of contract are set forth in Restatement, 4 T......
  • McWilliams v. Guzinski, No. 77
    • United States
    • United States State Supreme Court of Wisconsin
    • January 20, 1976
    ...we must permit 'all reasonable inferences' from the allegations in the construction of a complaint on demurrer (Purtell v. Tehan (1966), 29 Wis.2d 631, 139 N.W.2d 655), the inference that the unlocked gate made the pool accessible to his four-year-old child either because it was in fact ope......
  • Request a trial to view additional results

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