Tasse v. Kindt

• Decision Date: 10 December 1910
• Citation: 128 N.W. 972,145 Wis. 115
• Parties: TASSE v. KINDT.
• Court: Wisconsin Supreme Court

145 Wis. 115

128 N.W. 972

TASSE

v.KINDT.

Supreme Court of Wisconsin.

Dec. 6, 1910.

Dissenting Opinion. Dec. 10, 1910.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Fred Tasse against Charles F. Kindt. Judgment for defendant. Plaintiff appeals. Reversed and remanded, with instructions.

Siebecker, J., dissenting.

This action was brought to recover a commission of $400 for services rendered by plaintiff in procuring for the defendant a purchaser of certain real estate owned by the defendant. The defendant denied generally the allegations of the complaint. The action was here on a former appeal. 125 Wis. 631, 104 N. W. 703. The case was again tried in the court below, and the following verdict returned:

“(1) Was it agreed between the plaintiff and defendant on or about August 15, 1899, that if a purchaser of the defendant's 11 acres should be procured by the plaintiff at the highest price obtainable and satisfactory to said defendant that the defendant would pay the plaintiff 2 per cent. commission upon the amount obtained? Ans. Yes.

(2) If you answer ‘Yes' to question No. 1, then answer: Was such agreement modified on or about August 20, 1902, by the defendant's fixing the price at which the plaintiff should offer said property, being a tract of 10 acres, at $2,000 per acre? Ans. Yes.

(3) Was said 11 acres sold by defendant to Read and Neacy as an entire piece, and at the uniform price of about $1,909.09 per acre? Ans. Yes.

(4) Did said plaintiff procure Read & Neacy as purchasers for 10 acres of said property ready, willing, and able to purchase said ten acres at $2,000 per acre? Ans. Yes.

(5) Did the plaintiff prior to August 20, 1902, accept employment at compensation from T. J. Neacy and Walter Read to purchase the property mentioned in the complaint from the defendant for them? Ans. Yes.

(6) If you answer question No. 5, ‘Yes,’ then answer: Did the plaintiff inform the defendant that he had an agreement with Read & Neacy to receive a commission from them for negotiating the sale with the defendant? Ans. No.

(7) If you answer ‘Yes' to question No. 5, did such employment continue until about September 10, 1902? Ans. No.

(8) Was the plaintiff in the employ of both Read & Neacy and the defendant at the time he was endeavoring to effect a purchase and sale of the property? Ans. No.

(9) If the court shall be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages? Ans. To be decided by the court.

Robert Lippert, Foreman.”

Both parties moved for judgment on the verdict. The motion of the defendant for judgment on the verdict also included a motion that the answer of the jury to the first question of the special verdict be changed from “Yes” to “No”; that the answer of the jury to the second question be changed from “Yes” to “No”; that the answer of the jury to the fourth question be changed from “Yes” to “No”; that the answer of the jury to the seventh question be changed from “No” to “Yes”; and that the answer of the jury to the eighth question be changed from “No” to “Yes.” On such motion the court changed the answer to the seventh question from “No” to “Yes” and the answer to the eighth question from “No” to “Yes,” and denied defendant's motion to change answers to other questions in the special verdict. The court denied plaintiff's motion for judgment on the verdict, and ordered judgment in favor of the defendant dismissing the plaintiff's complaint, with costs. Judgment was entered accordingly, from which this appeal was taken.

Fred Doering, for appellant.

J. M. Clark, for respondent.

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

By the answers to the first, second and fourth questions of the special verdict as found by the jury, which the court below refused to change, it is established that it was agreed between plaintiff and defendant on or about August 15, 1899, that if a purchaser of the defendant's eleven acres should be procured by the plaintiff at the highest price obtainable and satisfactory to the defendant, the defendant would pay plaintiff two per cent. of the amount obtained as commission and that this agreement was modified on or about August 20, 1902, by the defendant fixing the price at which the plaintiff should offer defendant's property, being a tract of ten acres, at $2,000 per acre, and that the plaintiff did procure purchasers for said ten acres who were ready, willing and able to purchase the same at $2,000 per acre. These findings of the jury are supported by the evidence and alone are sufficient to entitle the plaintiff to recover independent of other findings in the special verdict under the established rule of this court. Kilpinski v. Bishop, 127 N. W. 974;Donohue v. Padden, 93 Wis. 20, 66 N. W. 804;Barry v. Schmidt, 57 Wis. 172, 15 N. W. 24, 46 Am. Rep. 35;Stewart v. Mather et al., 32 Wis. 355;Orton v. Scofield, 61 Wis. 382, 21 N. W. 261. Under the modified contract, as found by the jury, the contract of the plaintiff with the defendant was a specific one--namely, to procure a purchaser able, ready and willing to pay $2,000 per acre for ten acres of the land. The price was fixed by the defendant and the services to be performed specific, upon the performance of which plaintiff was entitled to his compensation. The fact that plaintiff had a contract with the purchaser for a commission in no manner conflicted with his duty to the defendant. This rule is recognized by this court in the cases above cited as well as by other courts. Mullen v. Keetzleb, 7 Bush (Ky.) 253;Rupp v. Sampson, 16 Gray (Mass.) 398, 77 Am. Dec. 416. Of course if the plaintiff occupied a position which required diligence in obtaining as high a price for the defendant's land as possible, or if the contract between the parties were such as to render the contract of the plaintiff with the purchaser at variance with his duty to the defendant, a very different question would be presented; both contracts could not stand together, because the two engagements would be inconsistent. This rule was aptly stated by this court on the former appeal. 125 Wis. 631, 633, 104 N. W. 703: “An agent who undertakes the duty of making a sale for another, or performing a duty in that connection involving diligence in promotion of the employer's interest, cannot recover commission if, without the seller's knowledge, he also be employed upon compensation to work in the interest of the purchaser.” This rule is relied upon by counsel for respondent on this appeal, but it is inapplicable. On the former appeal there was a general verdict, and the jury might well have found under the original contract that the plaintiff was to procure a purchaser at the best price obtainable, and, of course, under such an agreement, plaintiff could not accept compensation from the purchaser, and at the same time recover from the seller. But in the present case the jury found specifically that the original contract had been modified, and that the defendant had fixed his own price at $2,000 per acre, and the only duty which plaintiff owed defendant was to produce a purchaser able, ready, and willing to pay $2,000 per acre. When he had done this, he had performed his contract with defendant, and was entitled to his commission regardless of any contract which he had with the purchaser. Kilpinski v....