Tasse v. Kindt

• Decision Date: 03 October 1905
• Citation: 104 N.W. 703,125 Wis. 631
• Parties: TASSE v. KINDT.
• Court: Wisconsin Supreme Court

125 Wis. 631

104 N.W. 703

TASSE

v.KINDT.

Supreme Court of Wisconsin.

Oct. 3, 1905.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Fred Tasse against Charles F. Kindt. From a judgment for plaintiff, defendant appeals. Reversed.

Action by plaintiff, a real estate agent, alleging a verbal contract in 1899, whereby plaintiff was to procure a purchaser for certain real estate of the defendant “at the highest price obtainable and satisfactory to the said defendant,” and that, when he should furnish a purchaser ready, willing, and able to purchase at a satisfactory price, defendant should pay him 2 per cent. of the sale price; also that in 1902 defendant authorized an offer of said property at $2,000 per acre, and in September, 1902, plaintiff procured purchaser ready, willing, and able to purchase said property at the price of $2,000 per acre, to whom the defendant sold the property, amounting to 10 acres--wherefore $400 and interest was demanded. Evidence was given tending to establish the allegations of the complaint, and tending to show that defendant, while offering to accept $2,000 an acre some time in 1901, had insisted later on $2,300 per acre. It was conceded that defendant did sell to the Filer & Stowell Company, but whether for $2,000 per acre or for $1,909 per acre was somewhat in dispute. There was also evidence that plaintiff had negotiated with the Filer & Stowell people, and that he had obtained and communicated to defendant an offer from them of $2,000 per acre for 10 acres of land, and there was evidence tending to prove that, while so negotiating, he had an agreement with the Filer & Stowell Company to pay him a commission under certain contingencies. Defendant moved for a nonsuit at the close of the plaintiff's testimony, and, at the close of all the testimony, for direction of a verdict, both of which motions were overruled, and a general verdict rendered in plaintiff's favor for $400 and interest from the time of the sale. Defendant moved to set aside the verdict and for a new trial, and moved on affidavits after judgment to set aside the judgment and grant a new trial, both of which motions were overruled, whereupon appeals were taken both from the judgment and from the order after judgment, denying the motion to set it aside.McElroy & Eschweiler, for appellant.

Fred Doering, for respondent.

DODGE, J. (after stating the facts).

We shall find it unnecessary to consider any of the errors assigned, except an instruction in the following words: “There is some testimony in the case tending to show that the plaintiff, in the matter...