Ellis v. Kayser , 190 Wis. 189 ( 1926 )

Crown hart, J.

Charles T. Ellis, during the times in question, was a real-estate broker having offices in room 357 in the Washington building, in the city of Madison. C. C. Doring occupied the same office with Mr. Ellis. He also was a real-estate broker. Mr. Kayser was an old resident of Madison, and was the owner of a ninety-eight-acre farm on the outskirts of the city.

Several business and professional men were interested in securing a tract of land for a golf club. They had negotiated with Mr. Kayser for his property and had had two options for the purchase of the land. There was no money paid for the options and they fell through. These men were again in the market for a tract of land suitable for a golf club, and had in mind the property of Mr. Kayser as well as two other properties. Early in April, 1924, Mr. Kayser went to the office of Mr. Ellis and talked over with him the matter of selling his land. Mr. Doring was present and heard the conversation. Doring was one of a committee of the gentlemen proposing to organize a golf club, whose duty it was to negotiate for a suitable tract of land. Dor-ing testified that he heard Kayser talk with Ellis about a commission for the sale of Kayser’s land. Ellis was to receive three per cent, on the sale price of the farm.

“Mr. Kayser told Mr. Ellis that he would pay him three per cent, on the sale price of the farm,” and Ellis “agreed to the amount.” “Charlie Ellis said that three per cent, on the sale of this farm was satisfactory, and some discussion — he mentioned something about how that amount was to be paid, whether it should be paid in a lump sum at the time the option was signed. . . . Charlie Ellis suggested that one third of it be paid at the time the first payment was made and the balance was to be paid when the payment of $4,000 was made and a land contract executed. Mr. Kayser said T will pay that, then, in that manner.’ ”

There were negotiations that followed between Ellis, representing Kayser, and Doring, representing parties interested in the golf grounds, and finally, on April 18, 1924, the option to purchase was executed between Kayser and the committee; $2,000 in cash was paid down on the option; the option to extend to March 1, 1925, and the $2,000 to be retained as liquidated damages in case the option was not accepted. The price of the premises was to be $47,200. Prior to the 1st day of March, 1925, the parties exercised said option and paid $4,000 further on the contract.

Mr. Kayser kept a ledger account, and in such ledger account, under date of April 18, 1924, the same day the option was entered into for the sale of the premises, there was a debit to Charles Ellis of $472, and the figures “4285” representing the check number. This entry was made in the ordinary course of business by Mr. Kayser in his own hand-wi'iting. Kayser kept two accounts in this ledger, one “sundries” and the other “farm,” and the debit to Mr. Ellis was under the column of farm expenditures.

Mr. Kayser kept a bank account in the Bank of Wisconsin, and tnere was shown on the ledger sheet of Mr. Kayser a debit, April 21-, 1924, for $472, on account of a check issued by Mr. Kayser passing through the bank. On the 18th of April, 1924, there appeared on the ledger sheet of Mr. Kayser in the bank a deposit of $2,000.

A son of Mr. Kayser, appointed as administrator, testified that the checks and stubs of his father relating to these accounts had been destroyed.

The appellant testified that he entered a memorandum in his sales book, which was a personal account book, when he got the check from Mr. Kayser. Thereupon the book was produced, and the appellant’s attorney read into the evidence the following entry:

“April 18, sold A. H. Kayser in the town of Blooming Grove, 98 acres Monona Golf Club, $47,200. Services, $1,416. By check of Mr. Kayser, one-third of services, $472.”

It appeared that this entry was made by appellant’s stenographer by typewriter. Thereupon the appellant offered the memorandum in evidence, to which objection was made because incompetent. The objection was sustained, and the appellant complains of this ruling of the court. The stenographer was not produced to testify to the entry, and it was not shown that she was beyond the reach of a subpoena, or insane, nor was it shown that the entry was made in the usual course of business contemporaneous with the transaction, or that the entry was true and correct. Manifestly, the offer did not come within the statute. Sec. 327.25, Stats.

For obvious reasons the law prohibits the testimony of a person with reference to transactions or communications with a deceased person through whom he claims title to property. In such a case, ofttimes, the evidence must of necessity be more or less meager. Here, however, the evidence points unerringly to this situation: Kayser employed Ellis to sell his farm property. He agreed to pay a three per cent, commission on the sale price as fixed. He agreed to pay one third when the option was entered into, and the balance at the time the option was exercised and a contract of sale made between the parties. The sale price was to be $47,200; three per cent, would be $1,416, and $472 would be one third of that amount. This $472 was paid to Ellis by Kayser by check upon the Bank of Wisconsin, which check was destroyed after payment. Further, not only did Kayser employ Ellis, but he recognized his services as having been satisfactorily performed and made payment accordingly.

Sec. 240.10, Stats., provides that every broker’s contract to pay a commission for the sale of real estate must be in writing and subscribed to by the person to be charged; hence the oral contract here was invalid. However, this court has held that where the services performed under an oral contract are valuable and are accepted by the other party to the contract, recovery may be had on a quantum meruit. Seifert v. Dirk, 175 Wis. 220, 184 N. W. 698. The claim of Mr. Ellis is on a quantum meruit. The evidence shows that three per cent, is the usual and customary commission on the sale of farm lands in Dane county by real-estate brokers. There was no evidence to the contrary; hence, if Mr. Ellis is entitled to recover on quantum meruit, he is entitled to recover to the amount of his claim herein, which is $944.

The trial court found that Ellis did not find a purchaser and that he was not the efficient cause of obtaining a purchaser for the property, and further, found that Ellis rendered no services in and about the sale of the said property, under the said option or otherwise, that were not fully paid for.

We think the trial court misconceived the legal effect of the evidence. He did not find that Ellis and Kayser did not enter into the contract as stated; he did not find that Ellis, representing Kayser, did not negotiate with Doring, representing the proposed purchasers of the property; he did not find who was the efficient cause of obtaining a purchaser for the property; he did not find that Ellis rendered no services in and about the sale of said property, but he held that Ellis rendered no services for which he had not been fully paid. In other words, the court in substance held that the amount of $472 which Kayser paid to Ellis was sufficient compensation for the services that Ellis rendered Kayser. However, a real-estate broker’s commission is not based on the amount of services but on the result of the services. A broker may spend much time and money trying to sell a piece of property, and fail entirely, while again he may succeed in making a sale at the expenditure of very little time or money. To hold that Ellis is not entitled to the amount of his claim is to disregard the testimony as to the value of such services. Kayser recognized the value of the services and made part payment therefor. That seems to be reasonably clear. The trial court expressed himself of the opinion that he should scrutinize the testimony of Doring pretty closely because of the business relations between Mr. Ellis and Mr. Doring, and that may have led him to adopt a false premise. The facts and circumstances indicate, as we have pointed out, that Doring’s testimony was true, and; being true, is to be given full effect. There was nothing in the facts and circumstances that impeached Mr. Doring as a reliable and truthful witness other than the suspicion in which the court indulged that because of his close relations to Mr. Ellis he might be tempted to disregard the truth. But no such temptation was before Mr. Kayser when he made the entry in his books or when he gave Mr. Ellis a check for one third of the commission. The book entry of Mr. Kayser, the bank’s entry of the check passing through the bank, are sure indicia of the truth of Mr. Doring’s statement.

By the Court. — The judgment of the county court is reversed, with directions to allow the claim of the appellant.