Summary
In Gilbert v. Ludtke (1957), 1 Wis.2d 228, 83 N.W.2d 669, a written brokerage agreement for the sale of real estate had expired and the owner wrote to the broker telling him that he could still sell the property.
Summary of this case from Buckman v. E. H. Schaefer Associates, Inc.Opinion
May 9, 1957 —
June 4, 1957.
APPEAL from a judgment of the county court of Walworth county: ROSCOE R. LUCE, Judge. Reversed.
For the appellants there was a brief and oral argument by Lyman K. Arnold, attorney, and Robert W. Arnold of counsel, both of Elkhorn.
For the respondent there was a brief by John D. Voss, attorney, and Kenney, Korf Pfeil of counsel, all of Elkhorn, and oral argument by Mr. Voss and Mr. Francis J. Korf.
Action to recover a broker's commission alleged to be due for the sale of property by the plaintiff for the defendants. The material parts of the complaint were as follows:
"4. That this action pertains to a real-estate broker's commission as the result of sale of certain real estate situated in Walworth county, Wisconsin.
"5. That on March 23, 1952, the defendants above named listed for sale with plaintiff a certain cottage and contents located on premises hereinafter more accurately described; that the exact wording of said listing is as follows:
"`To H. E. Gilbert, Broker, Elkhorn, Wis.
"`In consideration of our spending your time money we hereby list for sale with you our cottage #34 on Lauderdale Lakes, LaGrange Tnp, Walworth Co. Wis. together with furnishings except as noted, lot, boathouse, 2 boats outboard motor. We will accept an offer of $23,500 for the above. We will furnish an abstract continued to date showing good merchantable title in our names will convey title by warranty deed. This is an exclusive right of sale to run through May 23, 1952. We will pay a 5 commission if the property be sold by you, ourselves, someone else, if traded, or if a cash offer for above amount be secured. It is understood that you will split 50-50 with any other licensed broker. Dated March 23, 1952.
"`/s/ Harold Ludtke (Seal) "`/s/ Mrs. Clarella Ludtke (Seal)' "6. That thereafter defendant Harold Ludtke did on the 7th day of December, 1952, write to said H. E. Gilbert as follows: "`Beloit, Wis. Dec. 7, 1952 "`H. E. Gilbert Elkhorn, Wis. "`Dear Bing:
"`Inclosed are a couple pictures of the cottage that may be of some help to you.
"`We have made up our minds that we want to sell the cottage pretty bad so see what you can get for it. Of course it has to be reasonable. Our price is $18,500 now but we would come down some. Get somebody to make you an offer if you can then get in touch with us. I think I told you that I had sold the boathouse to Breber. We now have about 250 feet of frontage.
"`Sincerely yours, "/s/ Harold Ludtke 1925 Jackson Beloit, Wis.' "7. That thereafter on March 20, 1953, the said defendant, Harold Ludtke again wrote to the said H. E. Gilbert as follows: "`Beloit, Wis. March 20, 1953 "`Dear Bing,"`Received your letter today. Yes, Bing you can still sell the cottage for me. Mr. Hanson is trying to sell it also and I believe he has his sign on the cottage but that makes no difference. If you sell it you get the commission, if he does he gets it.
"`I plan on being out there Saturday p.m.
"`Our price is $16,500 with your commission of 5% off of that price would leave us $15,675 and your commission of 825 ------- $16,500 "`Good luck to you Bing. I hope you can sell it. "`Sincerely yours, "`/s/ Harold Ludtke."`P. S. I think I told you we had sold the boathouse to our neighbor, Mr. Breber. The two boats in the basement we are just storing for friends. Our boat is outside.'
"8. That during the period from March 23, 1952, to April 8, 1953, the said H. E. Gilbert and one Maynard Stearns who, during the latter part of said period, was a licensed real-estate salesman, associated with said H. E. Gilbert, advertised the cottage of the defendants for sale, showing said cottage to, prospective purchasers and in various and sundry ways generally associated with real-estate brokers' business attempted to sell the premises hereinafter described.
"9. That on April 1, 1953, the said Maynard Stearns, after having received three (3) telephone calls from parties identified to him as Mr. and Mrs. Frank Bielawa, took the said Mr. and Mrs. Bielawa to the cottage of the defendants and exhibited the property to them; that the direct means by which this contact was made was by an advertisement by the above-named plaintiff in the Chicago Tribune.
"10. That the real estate referred to in this amended complaint is more accurately described as follows: [Description omitted.]
"11. That notwithstanding, the endeavor put forth by the plaintiff and his salesman did on the 8th day of April, 1953, convey to Anna Bielawa who, plaintiff is informed and verily believes, is the wife of Frank Bielawa, the afore-mentioned premises; that the deed of conveyance is on record in the office of the register of deeds for Walworth county, Wisconsin, and that it is recorded as document No. 451352 in volume 454 of Deeds, page 79, Walworth county records.
"12. That the above-named plaintiff has made demand on the above-named defendants for payment of customary real-estate broker's fees but that such demand has been ignored by said defendants.
"13. That the plaintiff is informed and verily believes that the sale price of said cottage was sixteen thousand five hundred ($16,500) dollars and that a reasonable broker's fee for the sale of said premises would be eight hundred twenty-five ($825) dollars."
It was stipulated that all of the allegations of the complaint were true except that the sale price of the property was $15,000. The court, upon the stipulation of facts, determined that the plaintiff was entitled to recover a commission of five per cent upon the sale price of $15,000 or $750. Judgment therefor with costs was entered on July 23, 1956. The defendants appealed.
The applicable statute is sec. 240.10, which provides that every contract to pay a commission to a real-estate broker shall be void unless such contract or some note or memorandum thereof be in writing and be subscribed by the person agreeing to pay such commission, and that it shall include the description, the price for which the same may be sold, and the period during which the broker shall procure a buyer. This statute was originally enacted by the legislature in 1917 and except for amendments not here material it has remained substantially in the same form since that date. This statute has been construed by this court in many cases.
In Hale v. Kreisel, 194 Wis. 271, 215 N.W. 227, it was held that the statute is an extension or enlargement of the statute of frauds and is as valid an exercise of the police power as are any of the other provisions of the statute of frauds which require certain contracts to be in writing. It was there stated that the statute means just what it says and that there can be no recoveries of real-estate brokers' commissions upon quantum meruit. In Leuch v. Campbell, 250 Wis. 272, 26 N.W.2d 538, it was held that under the statute there can be no implied contract to pay a commission.
In this case there was a contract that expired by its terms on May 23, 1952. The contract had no effect after that date unless it was extended by a contract or memorandum thereafter in compliance with the provisions of the statute. The letters to the plaintiff by the defendant Harold Ludtke, which are set out in the facts, are not in compliance with the provisions of the statute. No reference was made therein to the original contract. At best they were offers to negotiate a new contract. The termination date of the old contract could not be extended because the terms were different and, more important, some of the property previously listed for sale had been sold. The plaintiff made no attempt to accept the offers of the defendants by securing a valid contract based upon the offers contained in the letters. We cannot imply an extension of the old contract or a new contract.
The plaintiff contends that this case is controlled by Niske v. Nackman, 273 Wis. 69, 76 N.W.2d 591. In that case the contract expired by its terms on October 1, 1953. The trial court in that case found that the contract had been extended to May 1, 1954. Just how that was accomplished does not appear in the opinion but that finding was not challenged. The contract in the Niske Case contained a provision that the owner would not sell the property to a prospect submitted directly or indirectly by the broker. There is no such provision in the contract in the present case, and the Niske Case is not controlling.
The plaintiff also relies upon some general statements in the law of agency cited in texts and in Restatement of the Law of Agency. However, it does not appear from those statements that a statute similar to sec. 240.10 was considered or was applicable. We must, therefore, hold that the plaintiff had no enforceable contract at the time he exhibited the property to the persons who eventually bought it at a substantial reduction in price.
By the Court. — Judgment reversed. Cause remanded, with directions to enter a judgment dismissing the complaint, with costs to the defendants.