Terry v. Bartlett

• Decision Date: 08 April 1913
• Citation: 140 N.W. 1133,153 Wis. 208
• Parties: TERRY v. BARTLETT.
• Court: Wisconsin Supreme Court

153 Wis. 208

140 N.W. 1133

TERRY

v.BARTLETT.

Supreme Court of Wisconsin.

April 8, 1913.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Action by Frank T. Terry against E. W. Bartlett. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss.Miller, Mack & Fairchild, of Milwaukee, for appellant.

Rollin B. Mallory, of Milwaukee, for respondent.

BARNES, J.

This action is brought by the plaintiff to recover a commission of $870 alleged to be due on account of a sale of property made for the defendant. The jury returned a verdict in favor of the plaintiff, and from a judgment entered thereon defendant appeals.

There is little dispute in the testimony on material questions. The plaintiff was employed in August, 1905, by the defendant to sell certain real estate, under the following agreement: “He [defendant] asked me to sell the property and agreed to pay me 2 per cent. commission if I did so, and told me to ask $60,000.” On November 3, 1910, plaintiff offered the property to David Courtenay, a member of the firm of Courtenay & White, real estate dealers, and also president of the Northwestern Realty Company, for $60,000. Shortly thereafter Courtenay made an offer of $42,000. This offer was communicated to the defendant, but the name of the customer was not disclosed to him. In response to this offer, defendant said he would take $50,000. Courtenay refused to buy at this price, or to raise his offer. On November 17th defendant advised plaintiff that he might offer the property to his customer at $48,000, and give him one week in which to accept or reject such offer. Plaintiff acted on this suggestion, but Courtenay persisted in his refusal to raise the offer already made. A short time prior to November 24th Ferdinand Bartlett, a son of the defendant, called upon the plaintiff, and advised him, if he could get his customer up to $45,000, he (Ferdinand) would use his influence with his father to get him to accept this sum. Plaintiff was unable to get Courtenay to raise his offer to $45,000, or in fact to raise it at all, and so advised Ferdinand. It is undisputed that at no time did the plaintiff disclose to the defendant or to his son who his prospective purchaser was. It is not claimed that plaintiff had any exclusive agency for the sale of the property, or that defendant might not place the sale of it in the hands of other agents or sell it himself.

Ferdinand was married, was not living with his father, was employed by one of the Milwaukee trust companies, dickered a little in real estate, had the agency for the sale of his father's real estate, and had himself and in conjunction with one Weller attempted to sell the property in question. Weller also had the agency for the sale of the property for five or six years prior to December, 1910. About the 22d or 23d of November Weller, knowing that Courtenay or his company had purchased some real estate near the Bartlett property, called upon him in reference to buying this property also. He was advised that negotiations were then being carried on with Terry for its purchase, but that they would be at an end by Friday, November 25th. On the following Monday Ferdinand and Weller called on Courtenay, and succeeded in securing from him an offer of $43,500, which defendant accepted. On the occasion of this call Ferdinand was first advised that Terry had been negotiating with Courtenay. On December 1st defendant signed a contract to sell the property, and first learned that Courtenay was Terry's customer after this contract was executed. He paid the commission for making the sale to his son.

The foregoing statement embodies the material facts. Where there is any dispute in the evidence, we have given the version of it most favorable to the plaintiff, and we assume that plaintiff's agency did not terminate on November 25th. The principal question before us is: Is the defendant liable to the plaintiff for commission under his contract of employment? The case was submitted to the jury on a general verdict. The court instructed the jury that “the principal question in the case is this: Was plaintiff the procuring cause of the sale?” The court further instructed the jury as follows: “When a real estate agent contracts to procure a purchaser for real estate upon commission, it is not essential that he should bring the purchaser bodily to the owner of the real estate, or disclose to the owner the name of the...