Hand v. Conger ( 1888 )

LyoN, J.-

The only question presented for determination by this appeal is, Does the testimony tend to prove the defendant Conger liable for the commissions claimed.

Although the testimony is quite voluminous, the material facts which it tends to prove may be stated somewhat briefly as follows: The plaintiffs are real-estate brokers at Phillips, in Price county. In 1885 defendant Conger owned a tract of land in that county. He resides at Elkhorn, in Wal-worth county. During that year he employed Mr. Haight, residing in Oshkosh, to sell or aid in the sale of such land. Such employment was by parol. It does not appear that Haight had any authority to settle and fix the terms of sale, although Conger expressed his willingness to approve of what he might do in the matter: In September, 1885, Haight employed McDonald (formerly a defendant herein) to find a purchaser for the land, and told him he might have all he got for it over $12,000 as his compensation therefor. It does not appear that any terms of sale other than the price were stated by Haight to McDonald. The latter thereupon agreed with the plaintiffs that if they Avould find a purchaser of the land for $13,000, they should have a commission of $500 out of the purchase money. The plaintiffs soon found a person, one Davis, who would purchase the land and pay that price therefor on certain terms and conditions. Davis paid McDonald $500 towards the purchase, and McDonald, in his own name, gave him a receipt therefor. The agreed terms of sale were written in the receipt. McDonald paid the $500 to Haight, who gave a receipt therefor to McDonald for Davis, stating therein the terms of the sale as reported by McDonald to Haight. Thereafter McDonald, Davis, and one of the plaintiffs met at Oshkosh to close the sale. Haight and Davis differed as to the terms. Haight refused to take the . responsibility of accepting the terms insisted upon by Davis, and Davis refused to accept the terms insisted upon by Haight. Thereupon the four went to Elkhorn and met Gonger. The latter was willing to execute the contract proposed by Haight, but Davis would not accept it. Gonger refused to sign the contract proposed by Davis, and so the sale failed, and Gon-ger repaid Davis the $500.

There is no evidence that Gonger ever employed the plaintiffs to sell his land or find him a purchaser therefor, or that he ever authorized either McDonald or Haight to so employ them. Neither is there anjr proof that Gonger ever ratified the acts of McDonald or Haight’in the matter. He may have learned during the interview at Elkhorn (but not before) that if the sale was consummated at $13,000, the plaintiffs expected to receive and would claim a commission of $500 out of the purchase money, and probably he would have acceded to such claim. But it does not appear that he promised to do so, or ever authorized any one else to make such promise for him. There being no evidence to go to the jury on the question of Conger’s liability for the commissions claimed, the motion for a nonsuit should have been granted, or a verdict for the defendant directed. Railing these, the motion for a new trial should have been granted.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.