Greene v. American Malting Co.

Marshall, J.

Apart from the errors claimed to have been committed on the trial, it is suggested that there was jurisdictional error, in that after the case had been partially tried the proceedings were discontinued with the purpose of commencing the trial anew, and that, as the court- was about to do so, an affidavit of prejudice was recognized by assigning the cause for. trial in the same court before another judge. That is referred to as a change of venue upon an application not seasonably made. There are three good answers thereto. (1) The commencement of the trial having been rendered *220 entirely ineffectual, the cause stood the same as before. At any time before entering upon the second trial, it was competent to apply for a change of venue. The rule that after a trial shall have been commenced it is too late to apply for a change of venue under sec. 2625, Stats., Swineford v. Pomeroy, 16 Wis. 553 ; State ex rel. Winchell v. Circuit Court, 116 Wis. 253 , 93 N. W. 16 , does not apply where a trial has been initiated and discontinued, making a second initiation necessary, and an application for a change of venue is made before the latter occurs. (2) There was no change of venue granted.. A mere change of presiding judges in the same court is not a change of venue. Either one of the circuit judges for Milwaukee county was competent to preside at the trial. The assignment to a particular judge did not create a disability as to any other. (3) The trial was entered upon and proceeded to judgment without objection. The court, as presided over by the judge in question, had jurisdiction of such subjects. The voluntary submission to the trial gave it jurisdiction of the parties and of the particular controversy. If it did not have the same before, exercise thereof was not such a jurisdictional matter as to be unwaivable.

Complaint is made because the conversation and letter referred to in the letter of January 23, 1909, were excluded. The offer was made for the purpose of explaining the language in respect to the employment to obtain a purchaser being “exclusively in the hands of one broker” and plaintiff being “the only person authorized to handle the property.” We are unable to discover any purpose in the inquiries except to ^produce in evidence the mere conversations and negotiations which must be presumed to have been embodied in the contract made by the letter of January 23, 1909, and the acceptance thereof. There is no term of double meaning in the letter. Moreover, it was approved by plaintiff in face of the accompanying letter stating that it- was “exactly” in accordance with the conversation of January 17, 1909. That reinforces the presumption aforesaid. It is evident from that *221 and the letter of January 8, 1909, winch appears in the record, that the evidence was not sought to explain the contract, hut to vary it. The circumstances are not of a case of the use of a word or phrase of double meaning and conversations leading up thereto, indicating the particular use the parties had in mind. In the excluded letter “an exclusive agency” was the thing sought upon the ground that it would “be a mistake to have several real-estate men” trying to sell the property at the same time. Conformably thereto, the letter forming the vital part of the contract on defendant’s side, used the language “We agree with you that it is better that the sale of the property shall be exclusively in the hands of one broker, and you are the only person who is authorized to handle this property.” It really seems that the exclusion of the evidence, especially the letter of January 8, 1909, was rather favorable than unfavorable to appellant. That letter would have made it unmistakable, if not so otherwise, that what appellant was after was an appointment as exclusive agent to End a purchaser for the property, instead of there being “several real-estate men” working therefor at the same time.

So the case copies down to this: If the owner of property appoints another his exclusive agent to negotiate for sale of a particular piece of property, does he thereby disable him self from selling it to a third person, with whom such other has no connection, free from any claim for compensation by such other ?

The answer to the stated proposition must be in the negative by, at least, the great weight of authorities. The precise question does not appear to have been heretofore presented here. The Iowa court in Ingold v. Symonds, 125 Iowa, 82 , 99 N. W. 713 , cited to our attention by counsel for respondent, does not state the condition of the authorities much, if any, too strong in these words:

“The right of an owner to sell his own property is an implied condition of every contract of agency, and, unless expressly negatived, will prevail. The commission is payable *222 only in case of tbe agent’s finding a purchaser and the agent takes his chances on the owner himself making a sale. The only effect of such a contract [an exclusive agency contract] as the one before us is to forbid the owner from placing the property in the hands of any other agent. . . . This view is sustained by the unbroken voice of authority.”

The principle above stated may be found applied in many jurisdictions. The adjudications cited by respondent’s counsel are good examples and the following are among the best of them: Baars v. Hyland, 65 Minn. 150 , 67 N. W. 1148 ; Mott v. Ferguson, 92 Minn. 201 , 99 N. W. 804 ; Armstrong v. Wann, 29 Minn. 126 , 12 N. W. 345 ; Putnam v. How, 39 Minn. 363 , 40 N. W. 258 ; Golden Gate P. Co. v. Farmers' Union, 55 Cal. 606 ; Hungerford v. Hicks, 39 Conn. 259 ; Kimball v. Hayes, 199 Mass. 516 , 85 N. E. 875 .

•' A distinction is made in some cases between exclusive power to sell and exclusive agency to procure a sale or find a purchaser; in others between an exclusive agency and an agency for a particular time, where, within it, the agent, proceeding in good faith, finds a purchaser; between a sale, as in this case, without any interference on the part of the agent, and a sale to a person to whose attention the property is brought by the agent. Here there was the ordinary exclusive agency to find a purchaser, and after long delay, the owner made a sale without the agent being connected with it in any way. In such circumstances the agent is not entitled to commission.

By the Court. — The judgment is áffirmed.