Seifert v. Dirk

• Citation: 175 Wis. 220,184 N.W. 698
• Parties: SEIFERT v. DIRK ET UX.
• Decision Date: 19 October 1921
• Court: United States State Supreme Court of Wisconsin

175 Wis. 220

184 N.W. 698

SEIFERT

v.DIRK ET UX.

Supreme Court of Wisconsin.

Oct. 18, 1921.

Dissenting Opinion Oct. 19, 1921.

Appeal from Waukesha County Court; David W. Agnew, Judge.

Action by Gustav Seifert against John E. Dirk and wife. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

The complaint alleged in substance: That plaintiff is a real estate broker and a licensed member of the Wisconsin real estate board; that the defendants listed with him as such broker certain real estate of which they were the owners for sale or exchange; that the defendants promised and agreed to pay plaintiff for his services in and about such sale or exchange the usual and customary brokerage or commission paid for such services in the city of Milwaukee, that is, 3 per centum of the price fixed, either for sale or exchange, of $17,000; that through the services of plaintiff an exchange was made of defendants' property with that of another owner of property, and the defendants entered into possession and control of such other property pursuant to such exchange.

By stipulation between the parties there was inserted in the complaint, in order that the question here raised might be deemed to be squarely presented, the following:

“That no contract in writing for a commission was entered into, by, and between plaintiff and said defendants.”

It was further alleged:

“That the defendants became and are indebted to the plaintiff as a real estate broker for the worth and value of the work, labor, and services performed and rendered by plaintiff for them in and about the said exchange of their property for said other property, for which said defendants agreed to pay the plaintiff; that said services were and are reasonably worth the sum of $510.”

It was also alleged that the said sum became due, that demand therefor was made, and payment refused, and judgment was demanded for said sum of $510. The demurrer to such complaint being sustained, and a judgment of dismissal being thereafter entered, plaintiff appealed therefrom.

Owen, Rosenberry, and Jones, JJ., dissenting.

F. P. Hopkins, of Milwaukee, for appellant.

Otto A. Lemke and M. H. Sell, both of Milwaukee, for respondents.

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

The complaint was treated in the court below and on its presentation here as sufficient in form to state a claim upon quantum meruit, as well as upon an express contract to recover for rendered and accepted services in the exchange of real estate by the plaintiff as real estate broker for the defendants. We shall so treat it here, though the language of the complaint, so far as it purports to set out a cause of action quantum meruit, may not be as precise and definite as the usual rules of pleadings for such cause of action requires.

The demurrer to the complaint was sustained in the court below upon the view that, since the enactment of chapter 221 of the Laws of 1917 there can be no recovery for services rendered by real estate agents in procuring either a buyer or a seller of real estate except and unless such express contract be in writing, in accordance with the conditions specified in said chapter, and that, failing such express contract, there can be no recovery upon any implied contract to pay what the services were reasonably worth. Said chapter 221 of 1917 created a new section inserted in chapter 104, Stats., “Concerning fraudulent conveyances and contracts relating to real estate,” and reads as follows:

“Section 2305m. Every contract to pay a commission to a real estate agent or broker or to any other person for selling or buying real estate shall be void unless such contract or some note or memorandum thereof describing such real estate, expressing the price for which the same may be sold or purchased, the commission to be paid and the period during which the agent or broker shall procure a buyer or seller, be in writing and be subscribed by the person agreeing to pay such commission.”

This precise statute has been before the court twice since its passage; in Gifford v. Straub, 172 Wis. 396, 179 N. W. 600, where the written memorandum relied upon was held not to be a compliance with this statute, and for that reason a judgment for the defendant was sustained; and in Brown v. Marty, 172 Wis. 411, 179 N. W. 602, where the written contract there sued upon was held to be sufficient. In neither of these cases, however, was the question now before us presented or considered.

The conclusion of the court below in sustaining the demurrer to each of the causes of actions attempted to be set forth in the complaint herein is undoubtedly in accord with the general line of authorities upon statutes similar to the one here under consideration. It being generally stated that, where a statute such as here requires written authorization, a broker who acts under an oral contract of employment cannot recover the value of his services as upon implied promise; 19 Cyc. p. 220; 4 R. C. L. 300; 25 R. C. L. 437. Such statement is supported by a number of decisions.

In McCarthy v. Loupe, 62 Cal. 299, passing upon the precise question here presented as to whether the right still existed to rely upon an implied promise to recover the value of such services rendered, it was held that, inasmuch as an express contract was required by statute, the law would no longer imply a contract. The rule has been repeatedly declared in that jurisdiction in many cases intermediate the decision above cited, and the case of Ryan v. Walker, 35 Cal. App. 116, 169 Pac. 417; the same view is expressed in Indiana. Selvage v. Talbott, 175 Ind. 648, 95 N. E. 114, 33 L. R. A. (N. S.) 973, Ann. Cas. 1913C, 724, and again in Peters v. Martin, 69 Ind. App. 436, 122 N. E. 16.

In Idaho it was stated that to hold otherwise would be to absolutely nullify the statute. Wetherhead v. Cooney, 32 Idaho, 127, 180 Pac. 760.

In Michigan, while recognizing that recovery quantum meruit may be permitted for services actually performed under other kinds of contracts, if void under the statute of frauds, yet it was held under just such a statute as here that to make the same rule applicable would nullify the new statute, and that as to this particular class of contracts no recovery could be had in any form of action in the absence of compliance with such a statute. Paul v. Graham, 193 Mich. 447, 160 N. W. 616;Smith v. Starke, 196 Mich. 311, 162 N. W. 998.

In Iowa, in passing upon a Nebraska statute, limited, however, to the obtaining of a purchaser only, it was held that, an oral contract for such services being invalid in Nebraska, where made, could not be held valid or enforced in Iowa. Brown & Brammer v. Pearson Co., 169 Iowa, 50, 150 N. W. 1057. The Nebraska court so interpreted their statute. Barney v. Lasbury, 76 Neb. 701, 107 N. W. 989. The same view is held in Parker v. Bruggeman, 72 Wash. 309, 130 Pac. 358.

In Oregon the statute made an agreement of such kind not valid unless in writing, but also provided that evidence of the agreement shall not be received other than the writing itself, or secondary evidence thereof, and under such statute it was held that there can be no recovery as upon an implied contract. Taylor v. Peterson, 76 Or. 77, 147 Pac. 520.

In two jurisdictions acts have been passed punishing as a misdemeanor the offering to sell the real estate belonging to another without written authority. Upon an action brought to recover a commission, the breach of such statute was urged as a defense, but it was held that such legislation was an arbitrary infringement upon the rights of persons engaged in a lawful occupation, but intimated that, had it been an act for the purpose of regulating the business of brokerage or the statute of frauds a different question would be presented. Fisher v. Woods, 187 N. Y. 90, 79 N. E. 836, 12 L. R. A. (N. S.) 707. A similar penal statute was, however, held valid in Missouri, and prevented the recovery of a commission for a sale made in violation of its terms. Rothwell v. Gibson, 121 Mo. App. 279, 98 S. W. 801.

[1] We are compelled, however, to reach a contrary conclusion, and hold that the common-law right to recover quantum meruit for services of such a nature as those here involved, the benefits whereof are knowingly accepted and retained by the party against whom the claim is made, still remains, though the express contract under which the services were entered upon is declared to be void because not reduced to writing. Such right to recover quantum meruit is grounded in the common law. Page on Cont. par. 30. It has long been firmly established here. Wheeler v. Hall, 41 Wis. 447, 450;McMillan v. Page, 71 Wis. 655, 661, 38 N. W. 173;Miller v. Tracy, 86 Wis. 330, 56 N. W. 866;Wojahn v. National Union Bank, 144 Wis. 646, 667, 129 N. W. 1068;Grossbier v. C. St. P., M. & O. R. Co., 173 Wis. 503, 509, 181 N. W. 746.

While it is undoubtedly true that the existence of an express contract between parties generally repels any inference of an implied contract for the same subject-matter, nevertheless, where such express contract is void by reason of some provision of public policy, as expressed in other than penal statutes, the possibility of an implied contract being inferred is not excluded. Page, Cont. (2d Ed.) par. 1438.

There is no need here of considering, because of the substantial difference in the basis of the holdings, the many decisions declaring the doctrine that there can be no recovery in any form upon a contract which is made in violation of the provisions of a penal statute, such as for money loaned for gambling (Schoenberg v. Adler, 105 Wis. 645, 81 N. W. 1055), or those based upon a violation of the Sunday law (Sentinel Co. v. Meiselbach M. W. Co., 144 Wis. 224, 230, 128 N. W. 861, 32 L. R. A. [N. S.] 436, 140 Am. St. Rep. 1007;Jacobson v. Bentzler, 127 Wis. 568, 107 N. W. 7, 4 L. R. A. [N. S.] 1151, 115 Am. St. Rep. 1052, 7 Ann. Cas. 633); although as to...