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Attorney(S)

A. G. Schwefel of Milwaukee, for the appellant. For the respondents the cause was submitted on the brief of Winter Koehler of Shawano.

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Smart Summary

Summary of Opinion: Leuch v. Campbell

Factual and Procedural Background

P. F. Leuch, a licensed real-estate broker in Milwaukee, held an exclusive broker's listing with Roland and Doris Posik to sell a 268-acre farm with personal property in Waushara County. Leuch advertised the property. Arthur Campbell separately advertised real-estate services in the same publication. On June 20, 1945, Leuch sent Campbell a letter offering cooperation and proposing to "split commissions" because Leuch had an exclusive listing. Campbell replied on June 28 indicating he could work the transaction but requested that the Posiks come to his office so he could confer with them.

Leuch's exclusive listing with the Posiks expired July 1, 1945. On July 9, 1945, Mrs. Doris Posik and her father visited Campbell's office and that day Roland and Doris Posik entered into a contract (prepared by Campbell's attorney William Kuester) with Campbell to sell the farm at auction on August 21, 1945. Kuester was told that Leuch would have to be paid out of the ten percent commission because the Posiks would not pay two commissions. Between July 9 and the auction, Leuch wrote Campbell several letters which were unanswered. After September 11, 1945, Leuch visited Campbell, who denied owing any commission or that defendants Umland and Lutz had dealings prior to the auction date.

Leuch sued on October 30, 1945, seeking one-half of the commission realized from the August 21 auction. The case was tried by the court, which found no enforceable contract between Leuch and any defendant and determined there was no partnership among Campbell, Umland, and Lutz. The circuit court (Waupaca County) dismissed Leuch's complaint by judgment entered July 26, 1946. Leuch appealed. The Supreme Court of Wisconsin affirmed the judgment.

Legal Issues Presented

Whether an enforceable contract existed between plaintiff Leuch and defendant Campbell (or any defendant) to split the commission from the auction sale.
Whether Campbell, Umland, and Lutz were partners (i.e., whether a partnership existed among the defendants).
Whether defendants Umland and Lutz were entitled to recover costs including attorney's fees as claimed in their separate cost bill.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

On the central issue of an enforceable contract to split commissions, the court analyzed the sequence of communications and timing. It concluded the negotiations between Leuch and Campbell were "indefinite, uncertain and preliminary" and therefore did not amount to an enforceable contract. The court found no manifestation of assent by Campbell to Leuch's June 20 proposal. Key factual points relied upon by the court included:

Leuch's exclusive listing with the Posiks had expired on July 1, 1945, before the Posiks contracted with Campbell on July 9, 1945; thus, at the time of the Posiks' contract with Campbell no brokerage contract in favor of Leuch existed.
There was no evidence that Campbell ever manifested an intent to split the commission with Leuch.
Kuester, Campbell's representative, was informed when the Posik contract was made that Leuch's listing had expired.

The court applied Wisconsin statutory authority requiring that contracts to pay a real-estate broker's commission be in writing (sec. 240.10, Stats.), noting that under that statute "there is no room for a so-called implied contract." Because the asserted agreement to split commissions was not enforceable as a written contract and the negotiations were too indefinite, Leuch was entitled to no commission.

Regarding the partnership claim, the court found "not a scintilla of evidence" that Campbell, Umland, and Lutz were ever partners.

On the costs issue, the court examined the separate cost bills of Umland and Lutz and of Campbell. Umland and Lutz each appeared and answered and were represented by the same counsel as Campbell; they denied a partnership and defended that issue in common with Campbell. Under sec. 271.03, the trial court disallowed the separate cost bill of Umland and Lutz, and the Supreme Court concluded the trial court correctly disallowed their claim for attorney fees because their interests and defenses were united and presented by the same counsel. Campbell's cost bill (allowing $50 attorney fees and $13.50 disbursements) was treated separately and allowed by the trial court.

Holding and Implications

Holding: The Supreme Court of Wisconsin affirmed the judgment of the circuit court. The judgment dismissing the plaintiff's complaint was affirmed.

Implications: As a direct effect of the decision, Leuch recovers nothing — the court held he was not entitled to a commission or to a share of the commission from the auction because no enforceable contract to split commissions existed and his exclusive listing had expired prior to the Posiks' contract with Campbell. The court also held there was no partnership among Campbell, Umland, and Lutz. The trial court's disallowance of Umland and Lutz's separate cost bill was affirmed under sec. 271.03, while Campbell's cost bill had been allowed by the trial court. The opinion does not announce or rely upon any new judicial precedent; it resolves the case on the facts and application of the cited statutes.

Disposition

Judgment affirmed.

Note: Two justices, Fairchild and Wickhem, dissented (as noted in the opinion).

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LEUCH, Appellant, vs. CAMPBELL and others, Respondents.

This action was begun by the plaintiff, P. F. Leuch, on October 30, 1945, against Arthur Campbell, A. R. Umland, and Frank Lutz, defendants, to recover fifty per cent of the commission realized from an auction sale by the defendants, which sale was held on August 21, 1945.

There was a trial by the court. The court found that no enforceable contract existed between the plaintiff and any of the defendants. Judgment was entered accordingly dismissing the plaintiff's complaint on July 26, 1946, from which judgment the plaintiff appeals. The facts will be stated in the opinion.

ROSENBERRY, C. J.

The plaintiff, a licensed real-estate broker, having his office in the city of Milwaukee, entered into a broker's contract with Roland and Doris Posik to sell their two hundred sixty-eight-acre farm with personal property located in Waushara county. The plaintiff inserted an ad in the Waupaca County Post stating that he had this property for sale. In the same issue the defendant Campbell had inserted the following advertisement:

"We sell your farm, home or business in ten days and guarantee to satisfy. Our record speaks for itself. Write or see Arthur Campbell, Real Estate, Clintonville, Wis."

The Campbell "ad" coming to the attention of the plaintiff, on June 20, 1945, he wrote Campbell follows:

"I have a client who has a farm in Waushara county near Wild Rose, of which the inclosed is a description. Can you help dispose of it? Will split commissions with you as I have an exclusive listing. Please let me hear from you."

On June 28, 1945, Campbell wrote the plaintiff a letter, the material part of which is as follows:

"In reply: Please be advised that I am sure we could work out a very satisfactory deal on this property. However, if we are to make any headway, it will be necessary for your client to come into my office at Clintonville, so that I can have an opportunity to go over this with him. That is necessary so that I will know just what the situation is.

"If your client will come into the office and give me this opportunity to get acquainted with the transaction and we can apply our methods of selling to this particular transaction, I believe that a deal can be made which will be entirely satisfactory to all parties concerned."

The broker contract between the plaintiff and the Posiks by its terms expired on the 1st day of July, 1945. Mrs. Doris Posik with her father went to the office of Campbell on July 9, 1945, and on that day, Roland Posik and Doris Posik entered into a contract with Campbell to sell the farm and personal property at auction on August 21, 1945. Campbell was not personally present at the negotiations but was represented by his attorney, William Kuester, who drew the contract. Kuester was informed on the same day that the plaintiff would have to be paid out of the ten per cent commission as the Posiks were not paying two commissions. Between July 9, 1945, and the auction date, the plaintiff wrote various letters to the defendant Campbell, all of which remained unanswered. Some time after September 11, 1945, the plaintiff called upon Campbell at his office. Campbell denied that he owed any commission or that the defendants Lutz and Umland had any dealings prior to August 21, 1945, the auction date. Thereupon the plaintiff commenced this action to recover one half of the commission paid Campbell by the Posiks.

The court found the facts in regard to the making of the contract between the Posiks and Campbell, that Campbell was to receive ten per cent of the auction proceeds as compensation for services and to pay the necessary services rendered by the two employees of Campbell, Umland and Lutz; that on the date that said contract was procured by Campbell, the exclusive listing of the property with the plaintiff had expired; that no proof exists that the defendants were copartners; that the negotiations had between the plaintiff and Campbell —

"were of such an indefinite, uncertain and preliminary nature so as not to result in an enforceable contract."

Judgment was entered accordingly.

We are unable to find from the evidence in this case that the defendant Campbell ever manifested assent to the proposition made by the plaintiff in his letter of June 20, 1945. The only possible ground upon which it can be argued that he consented is the fact that the plaintiff sent Doris Posik and her father to see Campbell on July 9, 1945, but this was nine days after the plaintiff's contract with the Posiks had expired and, if they sold the farm under the circumstances of this case at that time, the plaintiff could claim no commission because he had no contract, his contract having expired. Sec. 240.10, Stats., provides that every contract to pay a commission to a real-estate broker is void unless in writing. Under this statute there is no room for a so-called implied contract. It appears that at the time that the contract was entered into between Campbell and the Posiks that Campbell's representative Kuester was informed that the Leuch contract had expired. It is clear that on the 9th day of July, when the contract was entered into between the Posiks and Campbell, there was no brokerage contract in existence between the plaintiff and the Posiks nor does it anywhere appear that Campbell ever manifested any intent whatever to split the commission with the plaintiff. Neither the plaintiff nor Campbell could have claimed a commission under plaintiff's listing contract if a sale had been made on July 9th. It is considered therefore that the trial court correctly held that the negotiations between Leuch and Campbell were not sufficiently definite and certain to amount to a contract. There was evidently some talk about taking care of the plaintiff's commission but the plaintiff was entitled to no commission.

There is not a scintilla of evidence which tends to show that Campbell, Umland, and Lutz were ever partners.

A question is raised as to the amount of costs to which the defendants, Umland and Lutz, are entitled. Each of the defendants appeared and answered and were represented upon the trial by the same counsel. Each of the defendants denied the existence of a partnership. The defendants Umland and Lutz served a separate cost bill, claiming that they were entitled to $50 attorney fees. Campbell on a separate cost bill was allowed $50 attorney fees and $13.50 disbursements. The plaintiff objected to the cost bill of Umland and Lutz and upon a hearing the trial court disallowed it. The defendants, Umland and Lutz, filed a motion for review. The defendants, Umland and Lutz, were concerned only with the issue relating to the existence of the partnership. With respect to that the defendant Campbell took the same ground that the defendants, Umland and Lutz, took. Upon that issue they were united in interest and made the same defense by the same counsel. Under the statute, sec. 271.03, it is considered that the trial court correctly disallowed the claim of Umland and Lutz.

By the Court. — Judgment affirmed.

FAIRCHILD and WICKHEM, JJ., dissent.

LEUCH v. CAMPBELL