Sixta v. Ontonagon Valley Land Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: SIEBECKER
• Citation: Sixta v. Ontonagon Valley Land Co., 157 Wis. 293, 147 N.W. 1042 (Wis. 1914)
• Decision Date: 21 May 1914
• Docket Number: No. 97.,97.
• Parties: SIXTA ET AL. v. ONTONAGON VALLEY LAND CO.

157 Wis. 293

147 N.W. 1042

SIXTA ET AL.

v.ONTONAGON VALLEY LAND CO.

No. 97.

Supreme Court of Wisconsin.

May 21, 1914.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by E. C. Sixta and another against the Ontonagon Valley Land Company. From a nominal judgment for plaintiffs, both parties appeal. Modified and affirmed.

See, also, 148 Wis. 186, 134 N. W. 341.

Winslow, C. J., and Barnes, J., dissenting.

This action is brought to recover damages for breach of a written contract by which the defendant as owner of lands gave the plaintiffs the exclusive agency from date of the contract, April 5, 1909, until January 1, 1911, for the sale of the lands included in the contract. The quantity of land was 17,340 acres in Ontonagon county and adjoining counties in Michigan. The defendant agreed to pay the plaintiffs a commission of $1.50 per acre upon all lands sold by them under the contract; this commission was to be deducted from the purchase moneys received on such sales; and all other purchase moneys and securities to be taken in the defendant's name were to be turned over to the defendant. It was agreed that the prices and terms of sale of lands by the plaintiffs were to be made by and subject to the approval of the defendant, and the plaintiffs were required to advertise the land for sale at their own expense and continually endeavor to sell them, and they were to bear all the expenses of marketing the land. The defendant also gave the plaintiff an option to purchase the lands or those remaining unsold on or at any time before January 1, 1911, at the uniform price of $6 per acre. It was agreed that, of the moneys and the face value of securities received by the defendant upon sales made by the plaintiffs, all above $6 per acre “shall be credited to the plaintiffs, Sixta (Sixta and Martin) and considered a payment upon the purchase price of the lands which Sixta elects to purchase.” The defendant reserved the right and was not to be prevented--

“from making sales of said real estate at any time or to any person; but the land company agrees not to sell any such land for a less sum than ten ($10) dollars per acre. On sales made by the land company no commission shall be paid Sixta; but, if he shall exercise the option given him, the land company agrees to credit him upon such purchase all sums over and above six ($6) dollars per acre received by it upon sales made by itself.”

It appears that the plaintiffs, immediately after the contract was made, commenced advertising and selling the lands, and by June, 1910, had sold 1,380 acres at an average price of $14.48 per acre.

On May 23, 1910, the defendant conveyed by statutory warranty deed all the unsold lands, being 16,360 acres, to the W. J. Hess Company at the rate of $6 per acre; this deed contained the provision:

“This conveyance is made subject to all the rights of E. C. Sixta and James G. Martin under an option and agency contract executed by them and said grantor, and dated April 5, 1909, a copy of which contract has this day been delivered to said grantee, and the receipt of such copy is acknowledged by the acceptance of this conveyance, and the grantee herein covenants and agrees to perform all the terms and conditions of said contract imposed on the grantor as to all lands described in this conveyance.”

The plaintiffs obtained information of this conveyance June 24, 1910, and soon thereafter protested to the defendant's officers, claiming the defendant had no right to make such transfer and sale at a price of less than $10 per acre.

It also appears that the defendant on the day of executing this deed to the Hess Company made a formal assignment of this agency and option contract between the plaintiffs and the defendant, and the Hess Company agreed to perform and complete the contract as was required of the defendant; that as to the lands theretofore sold by the plaintiffs the defendant reserved the right and assumed the duty to settle and adjust the matter with the plaintiffs, and this contract of assignment stipulated that it was particularly understood and agreed between the defendant and the Hess Company that no title to the lands embraced in the deed to the Hess Company should pass to the Hess Company, and the deed should not be effectual to convey title until after the option given the plaintiffs expired, and the plaintiffs' refusal to exercise their rights under it; and that, if the plaintiffs exercised their rights under the option, the Hess Company agreed to join the land company in a deed to the plaintiffs for the purpose of issuing to the plaintiffs a good title to the land. On June 25, 1910, the Hess Company, by warranty deed in form and context like the deed from the defendant to the Hess Company, conveyed all the lands to the Ontonagon Valley Settlement Company. On June 27th the plaintiffs reported, by letter to the defendant, sales of parcels of land to Wallen and to Bernhardt, inclosing cash payment and terms of sale. On July 9th the defendant replied thereto, acknowledging receipt, and stated:

“As we personally advised you we have sold our interest in the contract with you covering our Ontonagon valley lands to the W. J. Hess Co. of this city. We are advised by them that they have since transferred the land to the Ontonagon Valley Settlement Co. We have therefore turned the checks and your correspondence over to the Ontonagon Valley Settlement Co., who will give the matter their prompt attention.”

The plaintiffs, on Aug. 2, 1910, replied thereto, stating that they expected the defendant to carry out its contract with them; that they had spent considerable money and time advertising the lands, and developed an interest in their sale; that they had many prospective purchasers and intended to exercise their option; that the defendant's action rendered it impossible to do anything further under the contract, and demanded that the defendant make good to them their losses resulting from the defendant's breach of the contract. The president, Lindstedt, of the defendant company, the secretary, Mr. Nash, after the plaintiffs were informed of the Hess transfer and assignment, in conversations pertaining to these matters, asserted to the plaintiffs that they could proceed and continue under their contract, that the conveyance and assignment to the Hess Company did not affect their rights. The plaintiffs did not continue to make sales after those made to Wallen and Bernhardt, nor did they exercise their option. The defendant's officers were not applied to to fix prices or specify terms on any other sales by the plaintiffs, except as shown by the transaction here involved.

The court found there was a nominal breach of the contract, but that no damages were proven as resulting from the agency part of the contract, and that only nominal damages resulted to the plaintiffs from the breach of the contract, and awarded them judgment for 6 cents, and for their costs of action.

Both parties appeal from this judgment.

Hougen & Brady, of Manitowoc (P. H. Martin, of Green Bay, of counsel), for plaintiffs.

Nash & Nash, of Manitowoc, and Limes, Spooner, Ellis & Quarles, of Milwaukee, for defendant.

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

[1][2][3] An examination of the contract made by the parties discloses that the plaintiffs were given the exclusive rights to sell the lands as the defendant's agents, except that the defendant had the right to sell upon the terms and conditions specified. Another stipulation provided that all sales made by the plaintiffs must be submitted to the defendant to fix the price and the terms of sale, and the moneys received on the sales approved by the defendant above the stipulated commission the plaintiffs were entitled to was turned over to the defendant, and all securities taken on sales were to be in defendant's name, and for its benefit. These stipulations concerning the agency of the plaintiffs clearly show a relation of personal confidence and evince an intent that the rights reserved to the defendant to fix prices and terms on sales made by the plaintiffs should be exercised by the defendant's officers, and that this obligation should be performed for the mutual benefit of the two parties to the contract, without interference or hindrance by others. The conveyance of the lands and the assignment of the contract to the Hess Company brought a third party into the transaction which was manifestly contrary to the understanding embodied in the agreement, and brought a party into it whose interests were clearly hostile to those of the plaintiffs, and clearly tended to alienate the friendly co-operation of the defendant's officers to further the plaintiffs' rights and interests in fixing prices and terms of sales for the remainder of the time fixed by the contract. It is evident that the Hess Company made the purchase to obtain the lands, and this in itself naturally made the Hess Company adverse to further sales by the plaintiffs. The defendant, by transfering all its pecuniary interests in the lands, and by assignment of the contract, was likewise put in the position of an adverse party to the plaintiffs' interest in making sales. It also followed that, if the plaintiffs desired to perform their agency agreements, they encountered additional obstacles in securing conveyances of the defendant, and of the...