Graham v. Guetzkow

187 N.W. 982, 177 Wis. 259, 1922 Wisc. LEXIS 238

• Court: Wisconsin Supreme Court
• Decided: May 9, 1922
• Status: Published

Opinion

Doerfler, J.-

Sec. 2305m, Stats., provides as follows:

“Every contract to pay a commission to a real-estate agent or broker or to any other person for selling or buying real estate shall be void unless such contract or some note or memorandum thereof describing such real estate, expressing the price for which the same may be sold or purchased, the commission to be paid and the period during which the agent or broker shall-procure a buyer or seller, be in writing and be subscribed by the person agreeing to pay such commission.”

Was it proper, under the circumstances, to admit oral testimony in order to fix the so-called “board rate” of the Milwaukee Real Estate Association? If it was, the judgment of the lower court must be sustained; if not, it must be reversed. True, upon the face of the contract no definite specified rate is fixed, and the only rate referred to is the board rate.

It is held by this court in Gifford v. Straub, 172 Wis. 396, 179 N. W. 600, where the description of the land in the contract was “my place,” that “The writing relied on to establish the contract need not describe the land which is subject to sale otherwise than by a reference therein to some extrinsic fact by means of which the land can be known with sufficient certainty.”

In Brown v. Marty, 172 Wis. 411, 179 N. W. 602, the description was, “Property owned b)r the first party described as follows: 200 acres in Sections 35 and 36, Town of Springdale, Dane Co., Wis.,” and it was held to be sufficient and that parol or extrinsic evidence could be introduced to identify the land referred to. See, also, Graham v. Lamp, 174 Wis. 373, 183 N. W. 150.

Under the provisions of sec. 2305m, Stats., it is not only necessary to express in writing the commission to be paid but that the real estate shall be described. If it is proper in the cases above cited to show by parol evidence what land was intended by the parties, then it is equally proper to show the commissions intended to be paid; and inasmuch as the contract refers to some extrinsic fact by means of which the commissions can be ascertained with sufficient certainty, and inasmuch as the exact amount of the commissions was established by parol testimony, by reference to the board rate, we hold that the statute referred to, in respect to the matter complained of, has been adequately complied with. The cases above cited rule the instant case.

By the Court. — Judgment affirmed.