Green v. Kaempf , 192 Wis. 635 ( 1927 )

The following opinion was filed February 8, 1927:

Rosenberry, J.

There is an unusual and entirely unnecessary amount of fogginess and uncertainty in the record in this case, and we regret to say that it is not entirely dispelled by briefs of counsel. In disposing of the case the court said:

“I think under the circumstances and proofs in this case that I am justified in leaving all of the parties where I found them.”

However much we may sympathize with the trial court’s attitude, it becomes our duty to consider and dispose of the questions raised in the case.

Without setting out the evidence in detail, it is considered that it fully sustains the finding of the trial court that the defendants Kaempf were not in default and for the reason found by the trial court, — that is, that the defendants Miller were not within the stipulated time able and willing to complete the transaction according to the terms of the contract, but this conclusion does not dispose of the plaintiff’s rights in the matter and requires a construction of that part of the contract set out in the statement of facts from which it appears that each of the parties agreed to pay to the plaintiff $500 at the time the exchange of the property was completed. The exchange of the property was never completed, but it was further agreed that in case of default the “defaulter” should pay the whole amount of the commission, $1,000, and should likewise pay the party not in default $500 as liquidated damages. The plaintiff brought suit upon this contract, but did not allege in his complaint against whom he claimed a right of recovery, and upon the opening of the trial there was a demurrer to the complaint, but the court overruled the demurrer without requiring the plaintiff to designate against whom he sought recovery, so that we are left in the .dark as to the theory upon which the plaintiff relied in the trial of the case. We must infer, however, that because recovery in the amount of $1,000 was sought that he relied upon that clause of the contract under and by virtue of which the “defaulter” agreed to pay the full amount of the commission, or $1,000, and that he did not rely upon and seek to enforce that part of the contract by which each of the parties to the contract agreed to pay $500. In case one party to. the contract defaulted and the other did not, the plaintiff’s sole remedy was against the “defaulter.” The plaintiff so construed the contract, and we think correctly construed it. There is some evidence in the record as to preliminary negotiations in respect to the amount of commissions to be paid, but all such negotiations as to both parties appear to have been merged in the contract as drawn by the plaintiff and agreed to by each of the parties thereto and accepted and relied upon by him.

The defendants Kaempf not being in default and so not liable under that clause of the contract which made the “defaulter” liable, the question arises as to whether or not the defendants Miller were liable. The trial court excused the Millers from liability on the ground that the plaintiff procured the execution and delivery of the contract under such circumstances that he, the plaintiff, knew that it was impossible of performance by the Millers. We search in vain for any evidence of impossibility of performance. While there were liens against the property, while there were mortgages in excess of the stipulated amount, it was within the range of possibility for the Millers to discharge such liens and reduce by payment or otherwise the amount of the mortgage. If they were not financially able to do so, it would not amount to impossibility of performance in the legal sense.

While the plaintiff appeals from the whole judgment, he assigns no error with respect to that part of the judgment which denies him a right of recovery as against the Millers and asks that “the judgment should be reversed and judgment directed in favor of the plaintiff for $1,000 commission as claimed as against the defendants Kaempf.”

No relief is asked as against the Millers, and in open court upon oral argument the defendants Miller moved to dismiss the appeal as to them for the reason that no claim was made against them. While under the rule the defendants Miller are not entitled to a dismissal of the appeal, we see no escape from the conclusion that upon the record as it stands they are entitled to an affirmance of the judgment as against the plaintiff. The defendants Kaempf are not liable because not in default; the defendants Miller had judgment below, and the plaintiff seeks no relief here as against the Millers. Under these conditions he cannot recover against either the Kaempfs or the Millers.

There remains for consideration upon the notice of review given by the defendants Kaempf whether or not the defendants Miller are liable to the defendants Kaempf upon the cross-complaint of the latter. The court found that the Kaempfs were not in default, the court found that the defendants Miller were in default, but apparently excused them from liability to the Kaempfs on the ground that the contract was from the beginning impossible of performance on the part of the defendants Miller to the knowledge of the co-agent, Green, which knowledge affected the rights of the defendants Kaempf. We are unable to concur in that view. If the defendants Kaempf were not in default and the defendants Miller were in default, the defendants Kaempf are clearly entitled to judgment against the defendants Miller for the agreed amount of $500 as liquidated damages. They cannot be excused upon the ground that they were unable to perform the contract which they entered into. Whether they were unable or unwilling is immaterial so far as the rights of the defendants Kaempf are concerned. It would constitute an innovation in the law to hold that mere inability to perform excuses performance. It is considered, therefore, that the defendants Miller are liable to the defendants Kaempf.

By the Court. — Upon plaintiff’s appeal the judgment appealed from is affirmed in all respects; upon the defendants Millers’ notice to review, the judgment is affirmed; upon notice of review by the defendants Kaempf, that part of the judgment which denies them relief is reversed, and the cause is remanded with directions to enter judgment in favor of the defendants Kaempf and against the defendants Miller in the sum of $500.

A motion for a rehearing was denied, without costs, on May 3, 1927.