Opinion
September 9, 1953 —
October 6, 1953.
APPEAL from a judgment of the circuit court for Milwaukee county: ROLAND J. STEINLE, Circuit Judge. Affirmed.
For the appellant there was a brief by Steinmetz Steinmetz, attorneys, and C. R. Steinmetz of counsel, all of Milwaukee, and oral argument by C. R. Steinmetz.
For the respondents there was a brief and oral argument by Bernard F. Mathiowetz of Milwaukee.
Action commenced in the civil court of Milwaukee county by the plaintiff Dunn Stringer Investment Company to recover a broker's commission from the defendants Anton Krauss and Gertrude Krauss, his wife. The civil court rendered judgment in behalf of the plaintiff, and the defendants appealed therefrom to the circuit court. The circuit court on such appeal reversed the judgment of the civil court and dismissed plaintiff's complaint. From such judgment of the circuit court, plaintiff has appealed to this court.
The defendants were the owners of a grocery store on North Teutonia avenue in the city of Milwaukee and on October 21, 1949, they listed said store premises for sale for the sum of $33,000 with the plaintiff corporation, which was a licensed real-estate broker. The written listing agreement by its terms was to expire December 21, 1949, and provided for payment by defendants to plaintiff of a commission of five per cent of the sale's price if the plaintiff should sell the premises during the listing period. The contract also contained a provision that such commission was also to be due to plaintiff if said premises were sold by the defendants "within six (6) months after the termination hereof to anyone with whom you [the plaintiff] negotiated during the life of this contract and whose name you [the plaintiff] have filed with me [the defendants] in writing prior to the termination of this contract."
By verbal agreement the expiration of the listing agreement was mutually extended by the parties from December 21, 1949, to January 22, 1950. Prior to such expiration date representatives of the plaintiff called upon one Helmer Miller, who also operated a grocery store, and attempted to interest him in the purchase of defendants' store. Miller's wife and adult son, Howard Miller, participated in such conference. Howard Miller was single and resided with his parents and worked with his father in the latter's store. Such attempt by the plaintiff to sell, to Helmer Miller proved unsuccessful. Before the listing contract expired plaintiff submitted to the defendant Anton Krauss a letter in which plaintiff listed the names of four persons for the purpose of protecting itself as to a brokerage commission if the Krauss premises should be sold during the six-month period following the expiration of the listing agreement to any of such four persons. One of such four persons was described in such letter as "Herman Miller" but the street address of his residence and his phone number, which were also set forth in the letter, were those of Helmer Miller. However, Howard Miller's name was not one of the four names so submitted.
On February 21, 1950, Howard Miller submitted a written offer to the defendants to purchase their store premises for $30,000, which offer was accepted by the defendants and conveyance of the premises was made by warranty deed executed by the defendants to Howard Miller under date of March 9, 1950. There is no evidence that Helmer Miller financed such purchase for his son, Howard, or that the father had any financial interest in the transaction, but on the contrary the testimony is to the effect that the purchase price was supplied partly by Howard out of his own funds and the balance through a mortgage placed upon the premises purchased.
Among the findings of fact made by the judge of the civil court who tried the case originally was one which stated that "the defendants had actual notice that the agents of the plaintiff had negotiated with said Howard Miller for the sale of said property [prior to the expiration date of the listing contract]" and there is testimony to support such finding.
Whether the plaintiff real-estate broker is entitled to a commission on the purchase price of the premises sold by the defendant owners directly to the purchaser Howard Miller after the expiration date of the listing contract is dependent upon the proper interpretation of the clause in the listing contract having reference to sales made directly by the owners after such expiration date. Such clause provided that a commission was due on any such sale if made "within six (6) months after the termination hereof to anyone with whom you [the plaintiff broker] negotiated during the life of this contract and whose name you have filed with me [the defendant owners] in writing prior to the termination of this contract."
Defendants do not take issue with plaintiff's contention that plaintiff's agents had " negotiated" for the sale of a defendants' premises to Howard Miller during the term of the listing contract. In Munson v. Furrer (1952), 261 Wis. 634, 53 N.W.2d 697, we construed the word " negotiated," when so used in a real-estate broker's listing contract, to mean that the efforts of the broker to interest a prospective purchaser must have proceeded to the point where the prospect would be considered a likely purchaser.
The first point of contention of the plaintiff is, that inasmuch as the judge of the civil court found as a fact that defendants had actual notice that plaintiff had negotiated with Howard Miller for the sale of the premises during the term of the listing contract, a commission was due from defendants even though there had been no filing of Howard Miller's name with the defendants. Such contention is clearly untenable. Without the afore-quoted clause of the listing contract the plaintiff broker would be entitled to no commission on any sale made by the owners after the expiration date of the listing period. The clause in question provides two conditions, both of which must concur, in order for a commission to be due on any sale made during the six-month period following the expiration date of the listing period. The first condition is that the broker must have negotiated with the subsequent purchaser for the sale of the premises during the listing period. The second condition is that the broker must have filed the name of such subsequent purchaser with the owners prior to the expiration date of the listing period. Actual notice by the owners of the negotiations had between the, broker and the subsequent purchaser is not a substitute for the filing requirement.
The listing agreement having been a printed form supplied by the plaintiff broker, the same must be most strongly construed against the broker in case of any ambiguity or doubt. 12 Am. Jur., Contracts, p. 795, sec. 252; 17 C. J. S., Contracts, p. 751, sec. 324.
A property owner, who enters into such a listing contract with a real-estate broker and who desires to sell his property after the expiration of the listing contract, has a right to rely on the provision of the contract requiring the filing in writing by the broker of the name of any prospect, with whom the broker has negotiated, in order for the broker to be entitled to a commission. If there has been no such filing the owner has the right to assume that no commission will be due on the sale and, acting on such assumption, may reduce the sale price to a figure he would not have done if a commission were payable.
Plaintiff cites our decision in L. W. Smith Co. v. Romadka (1952), 261 Wis. 374, 52 N.W.2d 797, as an authority in support of its position that actual notice by the owners of negotiations by the broker with a prospective purchaser makes it unnecessary to comply with the filing requirement of the listing contract. Such case did not so hold. In that case the broker left with the owners overnight a written offer to purchase by the prospect. This occurred prior to expiration date of the listing contract. We held that this constituted a " filing" of the prospect's name in writing with the owners so that there had been full compliance with the filing requirement of the listing contract.
The second and last contention advanced by plaintiff is that the filing of the name "Herman Miller" with the defendant owners was sufficient compliance with the contract to cover a sale made to anyone of Helmer Miller's family during the six-month period following the expiration date of the listing contract. The fact that Helmer Miller's name was incorrectly filed as "Herman Miller" we do not consider to be material because his street residence number and telephone number were also listed, and there can be no doubt that the defendants were fully apprised that such filing referred to Helmer Miller. However, Howard Miller was an adult son and a person entirely apart from his father. If plaintiff had intended to cover anyone of the family in addition to Helmer Miller it could have done so by having listed the "Helmer Miller family" in the letter by which it filed with defendants the names of the prospects with whom it had negotiated. This it did not do, and as previously pointed out herein, in case of doubt the contract must be construed most strongly against the broker who supplied the contract form.
If the sale to Howard Miller was merely a subterfuge to cloak a sale actually made to Helmer Miller we would have an entirely different situation. However, the evidence clearly established that Howard Miller, and not Helmer Miller, was the actual purchaser.
By the Court. — Judgment affirmed.