The following opinion was filed June 20, 1927:
Doerfler, J.
The court allow’ed the defendant Goff a commission of $275 upon the sale of lot 30, which is the narrow strip reserved in the contract for sale by the plaintiff. Through the efforts of Goff, one Weaver was' procured as a purchaser of said lot, and as the result of negotiations such lot was sold to Weaver for the sum of $550. The evidence also discloses that the plaintiff waived his reservation to sell this lot himself, and consented that Goff make the sale. Plaintiff’s counsel argue that, this being a transaction between an owner and an agent with respect to the sale of real estate, the agent cannot collect commissions on such sale, for the reason that the contract did not authorize, the sale through the agency of the agent, but contained arj. express reservation for the plaintiff to sell this lot himself. In other words, the position of plaintiff’s counsel is that Goff cannot collect a commission, there being an express contract which did not include the sale of lot 30.
It appears, however, clearly, from the evidence, that as the sale of lots proceeded, Goff notified the plaintiff that he had sold this lot and claimed commissions therefor. No protest as to such claim of commissions was made by the plaintiff, but on the contrary the evidence shows that Goff’s [557] right to commission was expressly recognized by correspondence passing between the parties. The commission was subsequently paid by the plaintiff, and the transaction became a closed one, and was not challenged until subsequent to the rendition of an account by the defendant Goff to the plaintiff on or about October 10, 1924. There is no evidence of mistake or fraud. The transaction is therefore a closed one, and the plaintiff’s claim is without merit.
In September, 1924, Goff negotiated a sale of lot 31 to one Schultz for the sum of $600. The plaintiff was notified of this sale and was requested, to execute a deed prepared by Goff. The sum of $150 was paid by Schultz on the purchase price, and the balance Schultz agreed to pay upon delivery of the deed. The plaintiff notified Goff that the Schultz deed could not be executed on account of the illness of his wife, and he also requested that Goff secure a land contract from Schultz. This Schultz refused to do, as he was ready, willing, and able to pay the entire purchase price in cash. Thereafter it was agreed between Schultz and Goff that lot 43 be substituted in place of lot 31, the consideration for lot 43 being $500. Plaintiff failed to execute a deed to Schultz, and the latter concluded to abandon the purchase of any lot, and demanded and received the sum of $150 originally paid down on the purchase of lot 31.
The court in the accounting action allowed Goff the sum of $300 commissions. Had the substitute agreement not been entered into, there can be no question but that Goff would have been entitled to $300 commission. However, he voluntarily consented to the substitution of a lower-priced lot; therefore his commissions must be fixed on the sale of such lot and not upon the sale of lot 31. This would result in a deduction of $50 from the amount allowed Goff in the judgment.
On June 19, 1923, Goff secured the defendant McBean, who agreed to purchase lot 35 for the sum of $150. The sum of $25 was paid down on said last named date, and a [558] receipt for such payment was executed and delivered. On September 27, 1923, the balance of the purchase price for said lot was paid by McBean to Goff. In the month of July, 1923, McBean took possession of Ipt 35 and built a small shack thereon, costing between $200 and $250, and has since occupied said premises. When plaintiff’s attention was called to the alleged sale of such lot to McBean he protested vigorously, claiming that McBean was not a desirable customer, and that his presence upon the subdivision would have a detrimental effect upon the other lots contained in the plat. The sole negotiations with respect to the sale of lot 35 were had between Goff and McBean.
Goff then proceeded to cancel the alleged agreement with McBean and offered to return the money paid by him, but McBean insisted upon a conveyance and refused to accept the money. Plaintiff in his complaint prays that McBean be barred from having or claiming any right, title, or interest in and to lot 35; and McBean in his counterclaim prays for specific performance.
The contract did not in any manner restrict Goff as to the persons to whom he might sell lots. He was therefore fully justified in attempting to negotiate the sale to McBean; and having found McBean, who was ready, able, and willing to purchase this lot upon the terms provided for by the contract, Goff was entitled to his commissions.
However, by the written agreement, Goff was given the exclusive right to sell the lots in the subdivision. This contract was therefore a mere listing contract, and authorized the agent to negotiate a sale. Under such an agreement the agent could not enter into a written contract which would bind the principal. In the case of Grinde v. Chipman, 175 Wis. 376, 185 N. W. 288, it is held:
“By the great weight of authority the words ‘to sell’ or ‘to procure a purchaser’ are synonymous terms when used in a real-estate brokerage contract or listing agreement. [559] (Numerous authorities cited.) The authority conferred upon a broker by such an agreement which employs him 'to sell’ does not authorize him either to execute a conveyance of the premises or to enter into an agreement to convey.”
The decision in the Grinde Case, supra, is expressly affirmed in the recent case of Klann v. Icke, 192 Wis. 145, 212 N. W. 252.
The court found that the sum of $150 received from McBean was placed by Goff to the credit of the plaintiff in his bank at Ashland.
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The following opinion was filed June 20, 1927:
Doerfler, J.
The court allow’ed the defendant Goff a commission of $275 upon the sale of lot 30, which is the narrow strip reserved in the contract for sale by the plaintiff. Through the efforts of Goff, one Weaver was' procured as a purchaser of said lot, and as the result of negotiations such lot was sold to Weaver for the sum of $550. The evidence also discloses that the plaintiff waived his reservation to sell this lot himself, and consented that Goff make the sale. Plaintiff’s counsel argue that, this being a transaction between an owner and an agent with respect to the sale of real estate, the agent cannot collect commissions on such sale, for the reason that the contract did not authorize, the sale through the agency of the agent, but contained arj. express reservation for the plaintiff to sell this lot himself. In other words, the position of plaintiff’s counsel is that Goff cannot collect a commission, there being an express contract which did not include the sale of lot 30.
It appears, however, clearly, from the evidence, that as the sale of lots proceeded, Goff notified the plaintiff that he had sold this lot and claimed commissions therefor. No protest as to such claim of commissions was made by the plaintiff, but on the contrary the evidence shows that Goff’s [557] right to commission was expressly recognized by correspondence passing between the parties. The commission was subsequently paid by the plaintiff, and the transaction became a closed one, and was not challenged until subsequent to the rendition of an account by the defendant Goff to the plaintiff on or about October 10, 1924. There is no evidence of mistake or fraud. The transaction is therefore a closed one, and the plaintiff’s claim is without merit.
In September, 1924, Goff negotiated a sale of lot 31 to one Schultz for the sum of $600. The plaintiff was notified of this sale and was requested, to execute a deed prepared by Goff. The sum of $150 was paid by Schultz on the purchase price, and the balance Schultz agreed to pay upon delivery of the deed. The plaintiff notified Goff that the Schultz deed could not be executed on account of the illness of his wife, and he also requested that Goff secure a land contract from Schultz. This Schultz refused to do, as he was ready, willing, and able to pay the entire purchase price in cash. Thereafter it was agreed between Schultz and Goff that lot 43 be substituted in place of lot 31, the consideration for lot 43 being $500. Plaintiff failed to execute a deed to Schultz, and the latter concluded to abandon the purchase of any lot, and demanded and received the sum of $150 originally paid down on the purchase of lot 31.
The court in the accounting action allowed Goff the sum of $300 commissions. Had the substitute agreement not been entered into, there can be no question but that Goff would have been entitled to $300 commission. However, he voluntarily consented to the substitution of a lower-priced lot; therefore his commissions must be fixed on the sale of such lot and not upon the sale of lot 31. This would result in a deduction of $50 from the amount allowed Goff in the judgment.
On June 19, 1923, Goff secured the defendant McBean, who agreed to purchase lot 35 for the sum of $150. The sum of $25 was paid down on said last named date, and a [558] receipt for such payment was executed and delivered. On September 27, 1923, the balance of the purchase price for said lot was paid by McBean to Goff. In the month of July, 1923, McBean took possession of Ipt 35 and built a small shack thereon, costing between $200 and $250, and has since occupied said premises. When plaintiff’s attention was called to the alleged sale of such lot to McBean he protested vigorously, claiming that McBean was not a desirable customer, and that his presence upon the subdivision would have a detrimental effect upon the other lots contained in the plat. The sole negotiations with respect to the sale of lot 35 were had between Goff and McBean.
Goff then proceeded to cancel the alleged agreement with McBean and offered to return the money paid by him, but McBean insisted upon a conveyance and refused to accept the money. Plaintiff in his complaint prays that McBean be barred from having or claiming any right, title, or interest in and to lot 35; and McBean in his counterclaim prays for specific performance.
The contract did not in any manner restrict Goff as to the persons to whom he might sell lots. He was therefore fully justified in attempting to negotiate the sale to McBean; and having found McBean, who was ready, able, and willing to purchase this lot upon the terms provided for by the contract, Goff was entitled to his commissions.
However, by the written agreement, Goff was given the exclusive right to sell the lots in the subdivision. This contract was therefore a mere listing contract, and authorized the agent to negotiate a sale. Under such an agreement the agent could not enter into a written contract which would bind the principal. In the case of Grinde v. Chipman, 175 Wis. 376, 185 N. W. 288, it is held:
“By the great weight of authority the words ‘to sell’ or ‘to procure a purchaser’ are synonymous terms when used in a real-estate brokerage contract or listing agreement. [559] (Numerous authorities cited.) The authority conferred upon a broker by such an agreement which employs him 'to sell’ does not authorize him either to execute a conveyance of the premises or to enter into an agreement to convey.”
The decision in the Grinde Case, supra, is expressly affirmed in the recent case of Klann v. Icke, 192 Wis. 145, 212 N. W. 252.
The court found that the sum of $150 received from McBean was placed by Goff to the credit of the plaintiff in his bank at Ashland.
It is further claimed by plaintiff that the court erred in holding that McBean went into possession and made improvements thereon and is therefore entitled to specific performance of the oral contract. McBean went into possession after having paid down the sum of $25. It has heretofore been held in this opinion that Goff under his agreement could not bind the plaintiff, and it appears from the evidence that the plaintiff had no knowledge of this sale until after McBean had taken possession of the lot. Upon obtaining knowledge of this alleged sale the plaintiff immediately repudiated the same and refused to execute a deed. The mere fact that there was a payment down upon the property was not sufficient to take this case out of the statute of frauds. Brandeis v. Neustadtl, 13 Wis. 142, 152. A purchaser under a contract like the one in question is in duty bound to take notice of the extent of the authority of the agent. Therefore, Goff having the mere authority to secure purchasers, and having no authority whatever to bind the plaintiff, and the plaintiff having no knowledge of the alleged sale until after the payment of the $25 and after McBean had taken possession of the property, and McBean being in duty bound to ascertain the extent of Goff's authority, he acquired no title to the property or right of possession.
[560] The judgment of the circuit court, therefore, decreeing specific performance as to lot 35 must be reversed.
By the Court. — The judgment in favor of the defendant Goff on his counterclaim is modified in accordance with this opinion, and as so modified is affirmed.
The judgment in favor of the defendant McBean on his counterclaim is reversed, and the lower court is directed to enter judgment in plaintiff’s favor in accordance with the prayer of his complaint.
The defendant Goff is entitled to costs in plaintiff’s action as to him; and the plaintiff is entitled to costs as against the defendant McBean.
The following opinion was filed October 11, 1927: