Power v. Kane

ERROR TO MILWAUKEE COUNTY COURT. It is the custom of land agents or brokers in Milwaukee to charge and receive three per cent, of the amount of the purchase money. K. verbally employed P., a land broker, to seE for him certain lands, at a fixed price. P. found a person who was ready and willing to purchase on the proposed terms, when K. refused to seE. P. then brought suit declaring upon a contract or promise of K. to pay three per cent, of the purchase money, agreeably to usage in such cases. But it was held that such rate of compensation, and such impKed contract, depended upon the consummation of the sale. Usage, in order to enter into and become a part of the law of contracts or trade, must be established so clearly and explicitly, and be so notorious, that the parties must be presumed to know it, and to have contracted in reference to it.

ACTION of assumpsit brought by tbe plaintiff in error against the defendant in error to recover commissions for procuring a purchaser for certain lands of the defendant in the city of Milwaukee. The declaration was in the common counts, with a bill of particulars, stating the plaintiff’s demand as three per cent, upon the amount of the purchase money. Plea, non assumpsit. The trial was by the court, a jury having been waived by the parties. The evidence submitted on the trial was duly brought to the record by bill of exceptions, as well as the rulings of the judge; but the facts of the case are fully presented, so far as they are at all material, in the finding of the court thereon, set forth as follows: “The evidence having been submitted, the judge aforesaid found and decided that the following state of facts was made out, to wit: . “ The defendant verbally employed the plaintiff, who was a land agent, doing business as such in the city of Milwaukee, to sell for him a piece of land in the First Ward of said city. The plaintiff found a purchaser for the landj and executed to him a contract for the sale of the same, signed ‘ Charles I. Kane, by D. Gr. Power.’ The defendant (who was then absent from the city), on his return, at first promised the purchaser that he should have the lands on the terms mentioned in the contract above named; stating, however, that the plaintiff had no authority to sell it. He afterwards refused to convey, and the sale was mever consummated. The purchaser was ready and willing to. complete the purchase according to its terms, and the sale was broken off only on account of the refusal of the defendant to convey to the purchaser. The usual commissions of land agents in the city of Milwaukee are three per cent, on the amount of purchase money, which commission in this case amounted to the sum mentioned in a memorandum made by the defendant. “ Upon which the said judge decided that the plaintiff was not entitled to recover, and found for the defendant, on the ground that the sale was not completed, and therefore the plaintiff was not entitled to a commission. To which decision the plaintiff’s counsel excepted, and he moved for a new trial, on the ground that the decision was against law and evidence. The motion being overruled, and exception taken, judgment of non-suit was entered.” contended that the contract was fully performed on the part of the plaintiff, and that he was entitled to. recover the usual commission. The true construction of a land agent’s contract is, that he shall find and present to the owner of the land, a customer able and willing to purchase on the terms proposed by the vendor. More he cannot do. Dart on Vendors, 86, 210. If the contract be so construed, that the commission depended, upon, the consummation of the. sale, we answer, that the sale was made and is legally binding. Power, on Kane’s behalf, contracted in writing with the purchaser, and the bargain was complete, and either party could have it enforced. An agent’s authority to give a written, contract for the sale of land, need not be in writing. Rev. Stat. p. 388, § 6; Dart on Vendors, 84; Paley on Agency, 159. Tbe contract was tantamount in equity to a deed and mortgage. Jones vs. Judd, 4 Const. 412. Tbe counsel for tbe plaintiff in error, also ■ cited tbe following authorities, in support of tbe positions taken by them. Dart on Vendors, 82, 86 ; Paley on Agency, 101; 7 Bing. 237, 241; 1 Taunt. 12; 3 C. & P. 559 ; 7 id. 584; -4 Camp. 96 ;■ 5 Taunt. 302; id. 521. In any event, tbe plaintiff was entitled ■ to recover a quantum meruit, and tbe rate of commissions on sale was adequate evidence to guide tbe judge in finding tbe amount, and tbe non-suit was unwarranted. contended tbat tbe whole question of tbe right of tbe plaintiff to three per cent, commission, as such, under tbe custom of land agents in Milwaukee, was one of fact, and tbat this court cannot review tbe decision of tbe court below, as to what tbe custom was. Tbe plaintiff based bis whole right upon tbat custom, and be must abide tbe decision. ■ This identical question, as applicable to brokers, was decided in Broad vs. Thomas (7 Bing. 99); Reed vs. Rann (10 Barn. & Cress. 438). Tbe plaintiff below waived a jury, and submitted tbe matter to tbe court; it is¿ therefore, indifferent what reason tbe court might give for its decision, either upon tbe law or facts. A writ of error will not lie. Carroll vs. Richardson, 9 Mass. 329; College of Physicians, 12 Mod. 386; Baron vs. Ward, 1 Mass, arid note a, and cases there cited; 3 Blackst. 377 ; Stephens' PI. 92.