Wauwatosa Realty Co. v. Paar

• Decision Date: 07 November 1956
• Citation: 274 Wis. 7,79 N.W.2d 125
• Parties: WAUWATOSA REALTY CO., a Wis. corporation, Appellant, v. Carl PAAR et al., Respondents.
• Court: Wisconsin Supreme Court

Page 125

79 N.W.2d 125

274 Wis. 7

WAUWATOSA REALTY CO., a Wis. corporation, Appellant, v. Carl PAAR et al., Respondents.

Supreme Court of Wisconsin.

Nov. 7, 1956.

William F. Scholl and Mark M. Camp, Milwaukee, for appellant.

A. A. Hindin, Milwaukee, John A. Fiorenza, Milwaukee, of counsel, for respondent.

STEINLE, Justice.

The question involved on this appeal is whether the plaintiff real estate broker procured a purchaser, ready, willing and able to purchase the defendants' real estate pursuant to the terms of its listing contract so as to entitle the plaintiff to a broker's commission.

There is no dispute in the facts that on October 27, 1951, the plaintiff procured from Edward and Rose Jurss, their written offer to purchase the property at a price of $15,000. The offer was accepted by the defendants. The date agreed upon for the closing of the sale was January 3, 1952. Previous to the time fixed for closing, Mr. and Mrs. Jurss arranged with a bank in Milwaukee for part financing of the purchase price through a mortgage loan on the property from the bank. Mr. and Mrs. Jurss and Mr. and Mrs. Paar presented themselves at the office of the bank at the time fixed for closing the sale. Mr and Mrs. Jurss were financially able and were willing to pay the entire purchase price. Up to that time Mr. and Mrs. Jurss had not been advised of the existence of an unsatisfied $700 judgment against the defendant, Carl Paar, which was a lien against the property. Attorney Spoerl, who represented the plaintiff in the transaction, had previously obtained notice of the unsatisfied judgment of record when he made cursory examination of the abstract of title, after plaintiff obtained the abstract from defendants' mortgagee, and after Attorney Spoerl had caused it to be extended, and before the plaintiff sent the abstract to the bank with which Mr. and Mrs. Jurss had arranged for their loan. The abstract of title was sent to the bank by the plaintiff in the early part of December, 1951. The written contract of purchase between the sellers and the purchasers provided that the sellers had a choice of furnishing either an abstract of title or a policy of title insurance. The contract provided that if an abstract of title was to be furnished, it was to be extended to within 20 days of the closing and was to show marketable title, and was to be delivered to the buyer for examination at least 15 days prior to the date set for the closing. It was further provided that the buyer shall notify the seller in writing of any valid objection to the title within ten days after the receipt of the abstract, and that the seller shall then have a reasonable time, but not exceeding 90 days, within which to rectify the title. The purchasers did not notify the sellers of objection to the title within the time provided after the abstract was delivered to the bank on their behalf. An attorney representing the bank had examined the abstract of title on January 3, 1952, previous to the meeting and found that the title was good in the sellers excepting for the judgment. When Mr. and Mrs. Jurss appeared at the bank, the attorney for the bank informed them of the judgment. Mrs. Jurss testified at the trial that the bank was unwilling to loan the money on the mortgage as previously arranged, unless the judgment was satisfied. Mr. and Mrs. Jurss were not represented by an attorney. At the meeting, Paar took the position that the judgment was paid. He claimed that while the judgment had been docketed against him 13 to 15 years previously, he had since then instructed an agent of his to pay it; had delivered to the agent the required amount for payment; had received a receipt from the agent and had assumed that the matter was properly taken care of. At the meeting Attorney Spoerl suggested an arrangement whereby sufficient money be held in escrow to cover the payment of the judgment.

There was a dispute in the evidence as to whether the defendant Paar agreed to such proposed escrow arrangement. Considerable testimony was presented at the trial to the effect that he had so agreed, and the court found that he had done so. The finding is not against the clear preponderance of the evidence.

Mr. and Mrs. Jurss refused to proceed with the transaction for reason that the judgment was not satisfied of record. They departed from the bank abruptly, did not return, and at no time thereafter were they interested in closing the transaction. It does not appear that the bank was unwilling to agree to the escrow arrangement. Mr. and Mrs. Jurss subsequently engaged counsel to obtain refund of their down payment. There is no disclosure in the record as to whether the down payment was returned. Although the Paars for a few days after the meeting at the bank were willing to close the sale upon the basis of the proposed escrow arrangement, they later indicated to the plaintiff that they were no longer interested in selling the property. When payment of $750 claimed for commission was not made after demand, the action was commenced.

The courts below determined that in view of the defendants' willingness to carry out the proposed escrow arrangement, the title of the real estate as offered by them was marketable, and that they were not at fault for failure to complete the sale; that the refusal of Mr. and Mrs. Jurss to close the sale was arbitrary, and hence they were not willing purchasers; that the plaintiff did not produce a willing purchaser, and therefore did not earn the commission.

The defendants had bound themselves to pay a commission in the event that a person ready, willing and able to purchase their property was procured by the plaintiff. The payment of the commission was not conditioned upon the completion of the sale. The plaintiff produced and presented customers who...