Roberts v. Harrington

• Citation: 169 N.W. 603,168 Wis. 217
• Parties: ROBERTS v. HARRINGTON.
• Decision Date: 03 December 1918
• Court: Wisconsin Supreme Court

168 Wis. 217

169 N.W. 603

ROBERTS

v.HARRINGTON.

Supreme Court of Wisconsin.

Dec. 3, 1918.

Appeal from Circuit Court, Dane County; E. B. Belden, Judge.

Action by Frank Roberts against Cornelius Harrington. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss the complaint upon the merits.

Action to recover a 2 per cent. commission for the sale of defendant's farm of 185 acres founded upon a written contract stating that defendant “gives to the party of the first part [plaintiff] the exclusive sale of” his farm upon specified terms for a period of four months from December 13, 1916, the date of the contract. On April 3, 1917, defendant sold the farm to one Schoeneman for $7.50 per acre less than the price specified in the contract and without any knowledge that plaintiff had endeavored to interest Schoeneman in the purchase of the farm. At the close of the testimony the court directed a verdict for plaintiff for $420, and from a judgment entered accordingly the defendant appealed.

Kerwin and Eschweiler, JJ., dissenting.

Hill & Spohn, of Madison, for appellant.

Gilbert & Ela, of Madison, for respondent.

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

[1] The evidence shows without dispute that plaintiff had repeatedly sought to interest Schoeneman, among others, in the purchase of the farm, and had gone to some expense to secure a purchaser upon the terms specified. It also likewise shows that he had been unable to secure a purchaser, and that neither he nor Schoeneman nor any one else had informed the defendant that plaintiff had endeavored to induce Schoeneman to buy the farm. The sale was therefore made by defendant to a person to whom he believed and had reason to believe he had a perfect right to sell without incurring any liability for a commission, unless the contract giving plaintiff the “exclusive sale” of the farm for four months prevented him from making a sale during the life of the contract. It is well settled that the giving of an exclusive agency to sell real estate does not preclude the owner from selling within the life of the contract to one who he has reason to believe has not been procured by the agent. Greene v. Am. Malting Co., 153 Wis. 216, and cases cited on page 222, 140 N. W. 1130;Kimball v. Hayes, 199 Mass. 516, 85 N. E. 875.

[2] Does a contract giving the “exclusive sale” of real estate to another preclude the owner from selling while the contract is in force. It is true the words will technically bear that construction. But when we stop to reflect upon the situation of the parties and the object sought to be attained as well as the content of this contract, we should not give it that construction, unless the language is so clear and unambiguous as not to bear any other. The owner wants to sell his real estate. To that end he calls to his assistance one engaged in the real estate business, the broker, who becomes his agent for that purpose. The relation of principal and agent is established. It is obvious that for the protection of the agent it is often desirable that he should be the exclusive agent and should be protected against the chance of other agents reaping the benefit of his labor in securing purchasers; hence arise contracts for exclusive agencies. The idea, however, that the owner shall be excluded from the right to sell his own property goes deeper, and is so inconsistent with the notion of ownership and the jus disponendi thereto appertaining that clear and unequivocal language must be employed to negative such right. In the present contract, as is usual in such contracts, the broker does not bind himself to do anything. He may remain idle for the whole duration of the contract, and the owner cannot, pursuant to any terms thereof, even censure him for his inactivity. He has incurred no obligation to act. Whether he does or not is a matter of choice with him. Under such a situation the owner's right to sell should not be construed away upon ambiguous language. The words “exclusive sale” may well mean exclusive agency to sell, the idea being that the owner shall employ no other agent, and that the broker shall have the only grant of power to sell that the owner will execute; hence he shall have the exclusive sale. It is not unusual to hear real estate brokers say, “I have the exclusive sale of that property,” when all they mean is that they have the exclusive agency for its sale. If spoken words may have that meaning, so may also written, for ordinarily language acquires no new or different meaning by being reduced to writing. Hence the words “exclusive sale” may be construed to be an inhibition upon the owner to grant to any one else the power to sell, rather than an inhibition upon his own right to sell. We so construe them, for in order to negative the latter's right, as before stated, clear and unequivocal language to that effect must be employed.

It is said in some of the cases that there is a difference between an exclusive agency and an exclusive sale, but in all the cases called to our attention such statement is made arguendo, in construing contracts of agency or of exclusive agency. Such are the following: Armstrong v. Wann, 29 Minn. 126, 12 N. W. 345;Putnam v. How, 39 Minn. 363, 40 N. W. 258;Dole v. Sherwood, 41 Minn. 535, 43 N. W. 569, 5 L. R. A. 720, 16 Am. St. Rep. 731;Golden Gate Packing Co. v. Farmers' Union, 55 Cal. 606;Ingold v. Symonds, 125 Iowa, 82, 99 N. W. 713. In the latter case a contract giving a broker “exclusive authority to procure a purchaser” within a definite time was construed not to prevent the owner from selling. The court said:

“The right of an owner to sell his own property is an implied condition of every contract of agency, and, unless expressly negatived, will prevail.”

We have been unable to find a case where the precise question here presented has been decided. The nearest one is that of Fairchild v. Rogers, 32 Minn. 269, 20 N. W. 191, where a broker paid the owner $250 cash for the exclusive right to sell a certain piece of real estate for 60 days upon agreed terms. The court held that the owner could not sell within that time. The contract was oral, is not set out in the report of the case, and the question of its breach is not specifically treated. In view of the consideration paid by the broker for the contract, it was, no doubt, correctly construed. But where, as here, no consideration is paid for the contract and no obligation incurred by the broker to do anything, we deem the construction reached by us to be the more equitable and reasonable.

It should be added that we reach our conclusion from the terms of the contract itself, irrespective of the fact that defendant testified without contradiction that plaintiff told him that, if defendant made a sale, plaintiff would get no commission.

Judgment reversed, and cause remanded, with directions to dismiss the complaint upon the merits.

KERWIN, J. (dissenting).

The contract between the parties in this case is as follows:

“It is herein agreed by and between Frank Roberts, of Dodgeville, Wisconsin, party of the first part, and C. Harrington, of Madison, Wisconsin, party of the second part:

Party of the second part gives to party of the first part the exclusive sale of his land in the town of Arena, county of Iowa, state of Wisconsin, for a period of four months from the date of this contract. Number of acres of land, 185; price per acre, $120.00. Party of the second part agrees to pay party of the first part a commission of 2 per cent. All in excess of the contract price shall belong to the party of the first part.

Party of the second part agrees to accept $5,000 or $6,000 down, balance to be left on the land at a rate of 5 per cent. interest, purchaser having the right to pay one hundred dollars or any multiple of one hundred at interest paying day. Total amount must be paid in ten years.

Party of the second part agrees to furnish an abstract and convey the land by a warranty deed. This contract does not expire if the land is sold to any prospect furnished...