Suess v. Hartmann ( 1922 )

Rosenberry, J.

The trial court filed no formal findings of fact and conclusions of law, but the principal facts upon which the rights of the parties depend are practically undisputed. It is not claimed on behalf of the plaintiff that the arrangement under which the tanks were in fact constructed was that made by him with the representatives of the Green Bay Sugar Company, but he claims the contract resulted from his solicitations. It is undisputed that the deféndant refused to execute the contracts embodying the proposal submitted by plaintiff. While there is some conflict in the evidence, it is established with reasonable clearness that after the defendant had refused to sign the contracts and the plaintiff had left the employ of the defendant, representatives of the Sugar Company requested the defendant to proceed with the construction of the tanks; that the defendant refused to do this on the basis of the proposed contract; that thereafter the specifications were altered so as to substitute wooden for steel tops, by which a saving of $800 or $900 was effected, and the Sugar Company agreed to furnish hose and compressed air for riveting purposes. The defendant then went ahead on a time-and-material basis. That the refusal of the defendant to sign the contract was made in good faith is established by the fact that, after the alteration of the specifications was made and the work completed, there was a profit on the job of three and one-half per cent., demonstrating that without the alteration, with a liability for the five per cent, commission claimed by the plaintiff, the -proposal made through the plaintiff was at an insufficient price. Under these circumstances we are of the opinion that the plaintiff under his contract was not entitled to a commission upon the work done by the defendant for the Sugar Company. The arrangement entered into between the defendant and the Sugar Company was upon an entirely different basis and the result of subsequent negotiations after the defendant had in good faith and for adequate cause refused to accept the proposal made to it through the plaintiff. No question is raised but that the defendant acted in good faith. This is not a case where a party has accepted the benefit of valuable service rendered to it and declines to pay therefor, or where, by equivocation and indirection, there had been an attempt to evade liability. It is the contention of the plaintiff that the defendant, when demand was made upon it for the payment of the commission, did not deny its liability. Defendant explains this by saying that the plaintiff was a stockholder in the company and that if the contract had yielded a substantial profit it would have been willing to pay the plaintiff something. In any view the conduct of the defendant did not amount to an estoppel. It is therefore considered that the judgment of the municipal court should be reversed and the complaint dismissed.

By the Court. — It is so ordered.