Tasse v. Kindt ( 1911 )

The following opinion was filed December 6, 1910:

KeewtN, J.

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, 143 Wis. 390, 127 N. W. 974; Donohue v. Padden, 93 Wis. 20, 66 N. W. 804; Barry v. Schmidt, 57 Wis. 172, 15 N. W. 24; Stewart v. Mather, 32 Wis. 344, 355; Orton v. Scofield, 61 Wis. 382, 21 N. W. 261. Under tbe modified contract, as found by tbe jury, tbe contract of tbe plaintiff witb tbe defendant was a specific one, namely, to procure a purchaser able, ready, and willing to pay $2,000 per acre for ten acres of tbe land. Tbe price was fixed by tbe defendant and tbe services to be performed specific, upon tbe performance of wbicb plaintiff was entitled to bis compensation. Tbe fact that plaintiff bad a contract witb tbe purchaser for a commission in no manner conflicted witb bis duty to tbe defendant. This rule is recognized by this court in tbe cases above cited as well as by other courts. Mullen v. Keetzleb, 7 Bush, 253; Rupp v. Sampson, 16 Gray, 398. Of course if tbe plaintiff occupied a position wbicb required diligence in obtaining' as high a price for tbe defendant’s land as possible, or if tbe contract between tbe parties were such as to render tbe contract of tbe plaintiff witb tbe purchaser at variance witb bis duty to tbe defendant, a very different question would be presented. Both contracts could not stand together, because tbe two engagements would be inconsistent. This rule was aptly stated by this court on tbe former appeal (125 Wis. 631, 104 N. W. 703), at page 633:

“An agent who undertakes tbe 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 tbe seller’s knowledge, be also be employed upon compensation to work in tbe interest of tbe purchaser.”

This rule is relied upon by counsel for respondent on this appeal, but it is inapplicable. On tbe former appeal there was a general verdict, and tbe jury might well have found under tbe original contract that tbe plaintiff was to procure a purchaser at tbe best price obtainable, and of course under such an agreement plaintiff could not accept compensation from tbe purchaser and at tbe same time recover from tbe 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. Bishop, supra; Donohue v. Padden, supra. Where the character of the employment of the agent is such that compensation from the purchaser cannot affect his fidelity in the performance of his duty to the seller, as for example where ho is a mere middleman, or employed only to produce a purchaser at a fixed price, the rule that he cannot act for both parties does not apply. Tasse v. Kindt, 125 Wis. 631, 104 N. W. 703. It follows, therefore, that the fact found by the jury to the effect that prior to August 20, 1902, plaintiff accepted employment at compensation from Neacy and Read is not material, since under his specific contract with the defendant, as found by the jury, he was at liberty to do so. The distinction is clearly drawn in the decisions in this court heretofore referred to. In Stewart v. Mather, 32 Wis. 344, at page 355, Chief Justice DixoN, speaking for the court, said:

“A broker whose undertaking merely is to find a purchaser at a price fixed by the seller, or at a price which shall be satisfactory to the seller when he and the purchaser meet, is in reality only a ‘middleman,’ whose duty is performed when the buyer and seller are brought together, and as to whom the policy of the law which excludes double compensation has been considered inapplicable.”

To the same effect is the late case of Kilpinski v. Bishop, 143 Wis. 390, 121 N. W. 914. It follows, therefore, that changing the answers to questions I and 8 from No to Yes in no way affected the plaintiff’s right to recover, therefore tbe court should have ordered judgment in favor of tbe plaintiff upon tbe verdict.

By the Court. — Tbe judgment is reversed, and tbe cause remanded witb instructions to tbe court below to render judgment for tbe plaintiff.