United Farm Agency, Inc. v. Niemuth

• Decision Date: 28 April 1970
• Docket Number: No. 210,210
• Citation: 47 Wis.2d 1,176 N.W.2d 328
• Parties: UNITED FARM AGENCY, INC., Appellant, v. Vernon NIEMUTH et al., Respondents.
• Court: Wisconsin Supreme Court

Page 328

176 N.W.2d 328

47 Wis.2d 1

UNITED FARM AGENCY, INC., Appellant, v. Vernon NIEMUTH et al., Respondents.

No. 210.

Supreme Court of Wisconsin.

April 28, 1970.

This is an appeal from an order of the circuit court for Taylor county denying the plaintiff's motion for summary judgment. The plaintiff is a national farm and business sales organization. On April 18, 1968, the plaintiff's representatives entered into an exclusive listing contract with Vernon Niemuth, the defendant and respondent herein, for the sale of the Niemuth farm. Under the terms of the listing contract, the plaintiff agreed to find a prospective purchaser and was given the exclusive right to sell the farm for the price of $115,000. The agreement provided, inter alia:

'If a sale or exchange is made or a purchaser procured by the Broker, by the undersigned Seller, or by any other person, at the price and upon the terms specified herein, or at any other terms and price accepted by the undersigned Seller, during the term of this contract * * * the Seller agrees to pay Broker a commission of Ten per cent (10%) of the sale price.'

The effective period of the listing contract was from April 18, 1968, to April 18, 1969.

Defendant Vernon Niemuth and his wife were land-contract vendees of the farm. The land-contract vendors were the mother and father of Vernon Niemuth. At the time of the execution of the listing contract, Helen Niemuth, Vernon's mother, was the survivor of her husband and was the person entitled to the proceeds on the land contract. The land contract provided that payments were to be made by the assignment of 50 percent of the proceeds of all milk products sold from the farm. The land contract vendees were required to maintain a herd of at least 50 milk cows and were obligated to produce no less than 9,000 pounds of milk per cow per year. Sometime prior to August 1967, Vernon Niemuth sold his cattle and discontinued dairy-farm operations. Subsequent thereto, no payments were made on the principal due the land-contract vendor.

On June 26, 1968, the defendant in this action and his wife, Janet, entered into an agreement with his mother, Helen, in which they agreed to quit claim their farm to Helen. Simultaneously, Helen Niemuth was to execute a land contract for the sale of the farm to one Lammer, and Lammar was to transfer his farm to Vernon Niemuth and his wife. The contract provided that the purpose was to settle all accounts between Vernon Niemuth and his mother, including all obligations under the 1960 land contract. These transactions were apparently carried out, and the net effect of these conveyances was to place the Niemuth farm in the hands of Lammar, and Vernon Niemuth and his wife became the owners of the Lammar farm.

The plaintiff in this action takes the position that this transaction constituted a sale or exchange of the property that Vernon Niemuth had listed with it. It therefore brought an action under its listing contract, demanding that it be paid a commission of $12,057.60. Vernon Niemuth answered the complaint and stated as his principal defense that by reason of his default to Helen Niemuth and her threats to foreclose, that he and his wife were obliged, in settlement of their defaulted land contract, to convey the property to Helen Niemuth and that this transaction did not constitute a sale but was rather in lieu of foreclosure proceedings.

Following the joinder of issue, the plaintiff moved for summary judgment, in which it contended by annexed affidavits that the transaction and satisfaction of the land contract was in fact a sale and that the facts enumerated by the defendants in their answer did not constitute a defense. Plaintiff's affidavit also stated that the United Farm Agency had advertised the property, constantly worked on the sale, and had, in fact, brought two potential purchasers to inspect the Niemuth farm.

In response to these affidavits, Vernon Niemuth filed counter affidavits. Vernon Niemuth's affidavit stated that he:

'* * * desired to sell the farm real estate in question at a price of $115,000; that by reason of his contract default and pressure of possible foreclosure proceedings, affiant was forced to consent to a sale of the farm real estate. * * * That such sale * * * was made only so as to satisfy his obligation to Helen Niemuth and was not otherwise with his consent.'

In addition, an affidavit in support of the defendant's position was filed by Ernest Arndt, the brother-in-law of Vernon Niemuth. Arndt's affidavit attests to the default of Vernon Niemuth and recites the concern of members of Niemuth's family that Vernon had failed to meet his financial obligations to Helen Niemuth and recited her liability as a guarantor of other loans by Vernon, that Helen Niemuth and the affiant met with an attorney and directed him to call on Vernon Niemuth to discuss the land contract default, that Vernon was under a threat of foreclosure if he would not agree to the settlement terms, and that Vernon was under pressure to transfer the farm back to Helen Niemuth. Ernest Arndt also attests that, had the agreement not been reached, the decision to foreclose a land contract had already been made, and that Vernon would not have agreed to the settlement except for the pressures placed upon him.

On the basis of these affidavits, the circuit judge concluded that, although there was 'no factual dispute between the parties,' a question of law was presented. He nevertheless indicated that he was not convinced that the affidavits set forth all relevant facts which should be considered. The motion for summary judgment was denied, and the plaintiff has appealed.

Larry W. Rader, Wausau, for appellant.

Gene G. Krug, Medford, for respondents.

HEFFERNAN, Justice.

We affirm the order of the circuit court. The remedy of summary judgment is provided by sec. 270.635, Stats. That statute reads in pertinent part:

'270.635 Summary judgments. (1) Summary judgment may be entered as provided in this section in any civil action or special proceeding. Notice of motion for summary judgment and the papers in support thereof shall be served within 40 days after issue is joined,...