Schoenmann v. Whitt

• Citation: 117 N.W. 851,136 Wis. 332
• Parties: SCHOENMANN ET AL. v. WHITT.
• Decision Date: 29 September 1908
• Court: United States State Supreme Court of Wisconsin

136 Wis. 332

117 N.W. 851

SCHOENMANN ET AL.

v.WHITT.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Iowa County; Geo. Clementson, Judge.

Action by John Schoenmann and another against John L. Whitt. Judgment for defendant, and plaintiffs appeal. Affirmed.

This action is brought to recover a commission of $270 claimed to be due upon the sale of a farm. The alleged contract upon which recovery is sought was lost, but what purported to be a copy of at least the material portion of it was produced, and offered, and received in evidence, and is as follows: “Spring Green, Wis., Oct. 14, 1904. I hereby grant unto Schoenmann & Son the exclusive right to sell and to enter into a contract for the conveyance of the property described on the opposite side of this card, and authorize them to list the same for sale upon the terms and conditions mentioned, and agree to pay said Schoenmann & Son in the event of a sale of said property, the regular commission of two and one-half. I however reserve the right to revoke this agreement by giving said Schoenmann & Son ninety days notice in writing. [[[Signed] John L. Whitt.” The foregoing writing was not signed by the plaintiffs or either of them. The defendant asserted that the written memorandum did not express the entire agreement, and that it should be reformed so as to exempt him from the payment of any commission in the event of his making a sale of the farm himself. The court, on disputed testimony, refused to reform the instrument, and found that the agreement was fully expressed in the writing. Some three weeks after the signing of the written memorandum, the defendant sold the farm without any aid or assistance from the plaintiffs for a price in excess of what they were authorized to sell for. He refused to pay any commission because of such sale. A jury was waived, and the case was tried by the court. The trial court found that plaintiffs had not exhibited the farm in question to any purchaser, had not taken any steps to sell the same, and had not incurred any expense in reference thereto, except to talk with one person about it, to whom they expected to show it, but before doing so they learned it was sold, and that the contract lacked mutuality and therefore never had any binding force or effect, and awarded judgment dismissing complaint, from which judgment this appeal is taken.

Timlin, J., dissenting.Thomas W. King and Grotophorst, Evans & Thomas, for appellants.

Richmond, Jackman & Swansen, for respondent.

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

It is perfectly apparent that the signing of this paper by the defendant did not make a contract. It was not signed by the plaintiffs and contained no stipulation requiring them to do anything. At the time of its delivery to the plaintiffs it was entirely lackingin mutuality. The plaintiffs might have accepted the implied obligations of the writing on their part by doing the work and incurring the expense that such writing contemplated should be performed and incurred, and such acceptance, so made, would result in a binding contract. Arnold v. National Bank of Waupaca, 126 Wis. 362, 365, 105 N. W. 828, 3 L....