Buroff v. Bergmann , 170 Wis. 316 ( 1919 )

Owen, J.

The question is whether a verdict should have been directed. In seeking to vindicate the action of the court in this respect, respondent contends that in order to entitle plaintiff to recover it was incumbent upon him to prove that he produced a purchaser who was ready, willing, and able to pay $18,000 for the farm. The rule is familiar that where a broker undertakes to sell at a price fixed by the owner, in order to entitle him to compensation it must appear that he produced a purchaser ready, willing, and able to pay such price. According to plaintiff’s testimony, however, that was not his contract in the instant case. His version of the contract is that he was to receive a commission of two per cent, if he produced a purchaser to whom the farm was sold or traded. It is no doubt true that if he had produced a purchaser for the farm at $18,000 in cash he would have been entitled to recover upon his contract. That, however, was not all there was to the contract. The defendant indicated his willingness to trade, and, upon this kind of a deal, all the plaintiff could do was to bring the prospective purchaser or trader and the defendant together, from which point the negotiations were to be necessarily conducted by, and result to the satisfaction of, the defendant.

The rule is well settled that where a broker is employed to secure a purchaser, no price being fixed by the seller, and he introduces or refers the seller to one with whom the latter makes a deal, he is entitled to his commission where it appears that the act of the. broker in bringing the seller and purchaser together is the efficient procuring cause of the sale. Burdon v. Briquelet, 125 Wis. 341, 104 N. W. 83; Burd v. Webster, 128 Wis. 118, 107 N. W. 23; Sexton v. Goodrich, 131 Wis. 146, 111 N. W. 206.

' Under the plaintiff’s ' version of the contract, he was entitled to recover if he was the efficient procuring cause of the deal. Whether the contract was as claimed by him, and whether he was the efficient procuring cause of the deal finally consummated, was clearly, upon the evidence, a jury question. We do not attach any importance to the fact that at the time of listing the property the defendant said he wanted $20,000 or $22,000 in trade. The cash value of any trade is a matter of'mutual adjustment of prices, and by a little shrinking or puffing of value the cash equivalent of the trade is entirely within the control of the principals. A broker’s commission should not be made to depend upon whether the trade, reduced to terms of cash, upon values placed thereon by the owner, amounts to any given sum. Under such a contract the broker earns his commission when he has produced a person with whom the owner makes a trade; in other words, when it appears that the broker was the efficient procuring cause of the deal consummated.

Neither was it proper for the court to assume that the suspension of negotiations and their resumption at a later time, to the exclusion of Buroff, by defendant and Knowl-ton, resulting in the consummation of a deal somewhat different from that under consideration at the time of such suspension, took the question from the jury. The court could not say as a matter of law that the suspension of negotiations and their renewal within a month, resulting in the consummation of a deal which, while not exactly, was nevertheless quite substantially, the same deal that was under consideration when such negotiations were suspended, eliminated plaintiff as the efficient procuring cause of the sale. Willey v. Rutherford, 108 Wis. 35, 84 N. W. 14.

To the point that the deal as actually consummated was substantially the same as the one under consideration when negotiations were suspended, ii vvill be noted that there was an assumption of the $6,000 mortgage, the giving of a mortgage back for $5,000, the assignment of the $2,200 mortgage, the conveyance of the Western avenue property which Knowlton stood ready to turn in as a part of the original proposal instead of the Emerald street property, and the payment of a certain amount in cash. The only really new feature of the deal as consummated was the conveyance of the Twelfth street property.

It is further contended by the respondent that Buroff ,did not inform him that Knowlton was a prospective purchaser, and that, upon the authority of Roberts v. Harrington, 168 Wis. 217, 169 N. W. 603, he was at liberty to deal with Knowlton directly. That case simply held that the owner was at liberty to deal directly with one whom the agent had been endeavoring to interest in the purchase of the property where the owner had no knowledge of such fact and had no reason to believe that the agent had had prior negotiations with him. In the instant case, while Buroff did not expressly make the statement to the defendant that Knowlton was a prospective purchaser, that fact does not conclusively negative such knowledge on the part of the defendant. The nature of the negotiations was such that’ to our minds, the defendant must have been innocent indeed if he did not know that Knowlton was negotiating for the purpose of securing the farm for himself. But however that may be, there was certainly sufficient evidence to justify a finding by the jury that defendant had such knowledge.

A further contention is made that plaintiff should not be permitted to recover because he knew that defendant’s son owned, or at least held the legal title to, the farm. There is nothing -to this contention. The defendant had a very substantial interest in the farm, aside from the paternal interest which he had in-the welfare of his son. No reason is perceived why he could not- enter into a lawful contract to pay plaintiff a commission if he "should procure a purchaser therefor. To our minds the case presents a clear question for the jury.

By the Court. — Judgment reversed, and cause remanded for a new trial.