Orton v. Scofield

21 N.W. 261, 61 Wis. 382, 1884 Wisc. LEXIS 225

• Court: Wisconsin Supreme Court
• Decided: November 6, 1884
• Status: Published

Opinion

Cassoday, J.

1. The cause of action alleged in the original complaint was quite indefinite and uncertain, but no motion was made to make it more definite and certain. "Whether it was sufficient under the rulings of this court to support a judgment in favor of the plaintiff need not be here considered. Redmon v. Phoenix Fire Ins. Co. 51 Wis. 298, 299. It is sufficient to know that it was susceptible of amendment and was amended before trial, and the trial had upon it as amended. It was not a departure from, the cause of action-sought to be alleged in the original complaint, nor did it introduce any new cause of action.

2. The precise objection thg,t the amendment was not verified does not seem to have been made at the time of its allowance, and it is certainly too late to make it for the first time in this court.

3. The court, among other things, charged the jury that “if Mr. Sweet did not act as an agent for or in the interest of either party, but was a mere middleman to bring the parties together, they then to make their own contract in relation to the exchange of property, then such employment was legal, and Mr. Sweet could recover from both parties commissions or pay for his services.” The rule thus indicated has received the sanction of this and other courts. Herman v. Martineau, 1 Wis. 151; Stewart v. Mather, 32 Wis. 344; Barry v. Schmidt, 57 Wis. 172; Rupp v. Sampson, 16 Gray, 398; Mullen v. Keetzleb, 7 Bush, 253; Siegel v. Gould, 7 Lans. 177; Shepherd v. Hedden, 29 N. J. Law, 334. But where the person so doubly employed is more than a mere middleman, and acts as broker or agent in effecting the sale or exchange, he cannot recover; especially where the party sought to be charged was at the time ignorant of the employment by the other party. Meyer v. Hanchett, 39 Wis. 419; S. C. 43 Wis. 246; Shirland v. Monitor I. W. Co. 41 Wis. 162; Scribner v. Collar, 40 Mich. 375; Rice v. Wood, 113 Mass. 133.

Here the evidence on the part of the plaintiff showed that Sweet acted as a middleman merely. There was no evidence that he was employed by the defendant in any other capacity. The defendant denied that he employed Sweet for any purpose whatever’. Which told the truth seems to have been the only controverted question. The issue was fairly submitted to the jury. Their verdict conclusively establishes the fact that Sweet was a mere middleman, and was to receive for his services the amount testified to by him. ■ This being so, it became immaterial whether Nickell also employed him in the same capacity. The undisputed evidence shows that Sweet was not present when the trade was made, and had no authority and entered into no negotiation as to the terms of the trade.

The transfer of the claim to the plaintiff was undisputed. The nature of the issue and the character of the evidence dispose of the other minor exceptions to other portions of the charge. Hence it becomes unnecessary to. specifically consider such exceptions. In fact, they do not seem to be seriously relied upon.

By the Ooxurt — The judgment of the circuit court is affirmed.