Opinion
January 10, 1958 —
February 4, 1958.
APPEAL from a judgment and order of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Affirmed.
For the appellant there was a brief by Charne Kops of Milwaukee, and oral argument by Irving B. Charne.
For the respondent there was a brief by Hersh Magidson of Milwaukee, and oral argument by Arthur B. Magidson.
Plaintiff sued for broker's commissions alleged to be owed it by defendant for plaintiff's services in negotiating leases of defendant's real estate. The appeal is from a judgment which dismissed the complaint on the merits and from an order after judgment denying plaintiff's motions to amend the findings of fact.
Plaintiff-appellant is referred to herein as "Elbinger Company" and defendant-respondent as "Meyer Mfg. Company."
Elbinger Company is a real-estate broker. Meyer Mfg. Company owned two parcels of unimproved real estate. Elbinger Company succeeded in negotiating leases of both parcels, with buildings to be erected on them by Meyer Mfg. Company, to A P Company. The leases were for five-year terms and gave A P Company options to renew the leases for three successive terms of five years each. When the leases were executed there was no written contract or memorandum of agreement for compensation between Elbinger Company and Meyer Mfg. Company. Elbinger Company submits that there was an oral agreement between them which is sufficiently set forth in a number of documents passing between the parties, after the services were rendered, to satisfy the requirement of sec. 240.10, Stats., for a memorandum of the contract of employment.
The material part of the statute is:
"240.10 REAL-ESTATE AGENCY CONTRACTS. Every contract to pay a commission to a real-estate agent or broker or to any other person for selling or buying real estate or negotiating lease therefor for a term or terms exceeding a period of three years shall be void unless such contract or note or memorandum thereof describing such real estate, expressing the price for which the same may be sold or purchased, or terms of rental, the commission to be paid, and the period during which the agent or broker shall procure a buyer or seller or tenant, be in writing and be subscribed by the person agreeing to pay such commission."
On February 12, 1942, soon after both leases had been executed by landlord and tenant, Elbinger Company billed Meyer Mfg. Company for commissions claimed to be due for broker's services. Except for variation in the location of the two stores and the rental of each to be paid by A P Company and commissions claimed thereon, the invoices are similar, i.e.:
"Services for negotiating lease for store to be erected at the northeast corner of Fifth and North avenue for the A P Company for a five-year term each for three successive terms. Lease to commence June 1, 1942, and run to May 31, 1947, at the rental of $9,000 per year — $45,000.
"Three years at $9,000 per year....... $27,000 5% commission..................... $1,350 "Two years at $9,000 per year......... $18,000 3% commission...................... 524 _______ "Amount due............................ $1,874 "On the two successive options for five years each, the commission is to be paid when each option is exercised."The invoices appear to have been ignored until August 29, 1942. Mr. Elbinger wrote Meyer Mfg. Company about that time calling attention to the unpaid bills. The invoices bear handwritten notations evidently put there by Mr. Meyer and Mr. Kortsehl who were respectively president and secretary of Meyer Mfg. Company. They are not so designated in the notations or elsewhere on the invoices. One such notation is "O.K.," followed by Mr. Kortsehl's initials. Mr. Kortsehl testified that thereby he authorized checks to be drawn to pay the bills. Both bills were indorsed "Paid Under Protest" and were paid September 23, 1942, accompanied by a letter signed by Meyer as president of Meyer Mfg. Company. The letter explains the protest as Meyer Mfg. Company's refusal to recognize the commission schedule of the Milwaukee real estate board, its apprehension over inflation, and its disagreement with payment of commissions before the rent is received against which they are charged.
When the first five-year term of the leases ended, A P Company exercised the option to extend them for five years more. On August 13, 1947, Elbinger Company billed Meyer Mfg. Company for three per cent commissions on rents for five years. Meyer Mfg. Company wrote Elbinger Company that the dates of the leases referred to in the invoices were not correct. It paid the invoices. These bills had nothing on them referring to future liability for commissions and there are no notations on them.
In 1948 both parcels were sold to a third party who agreed to save Meyer Mfg. Company harmless if demands were made upon it by Elbinger Company for further commissions. In 1952 the second term of five years expired in both leases and A P Company again exercised its options of renewal. And again Elbinger Company billed Meyer Mfg. Company for three per cent commissions on the rents to be paid during the new term. This time Meyer Mfg. Company refused to pay and Elbinger Company brought this action to collect.
Additional material facts are stated in the opinion.
Sec. 240.10, Stats., declares void any contract to pay a commission for negotiating a lease for a term longer than three years unless there is a written contract, note, or memorandum signed by the person agreeing to pay, which describes the real estate, expresses the terms of rental, the commission to be paid, and the period during which the broker shall procure a tenant.
There is no such single contract, note, or memorandum here. Elbinger Company submits that several documents in evidence may be taken together and together they contain all the elements demanded by the statute. For the moment we may pass over the possibility of combining, integrating, the several writings.
Even if integrated we discover from them no mention of the period during which the broker is to find a tenant. The fact that he did find one does not eliminate the statutory requirement that the time be expressed in which he may do so. Appellant refers us to Brown v. Marty (1920), 172 Wis. 411, 179 N.W. 602, in which we held there was a substantial compliance with this requirement in a contract which had no definite time limit but which reserved to the property owner the right to revoke the agreement upon three-months notice in writing. We said (p. 414):
". . . we think the contract in question is sufficiently definite in expressing the time of duration in that it provides a method by which the duration of the contract may be absolutely fixed, to wit, three months after the giving of written notice by the owner."
There is nothing of the sort in any one of the documents upon which Elbinger Company relies, nor in them taken together. The subject of termination of the broker's contract is not treated at all. In this respect there is no compliance, substantial or otherwise, with sec. 240.10, Stats., and that section declares that when the written memorandum, note, or contract fails to express the period during which the broker shall procure a tenant the agreement to pay him a commission shall be void. Appellant does not contend that the period is expressed anywhere in the writings on which it relies. It contends, only, that in circumstances such as these such expression is unnecessary. We are unable to agree; the legislature has directed otherwise.
Assuming but not deciding that the documents may be integrated, they fail to add up to a memorandum satisfying still another requirement of sec. 240.10, Stats.
The invoices of February 12, 1942, are bills to Meyer Mfg. Company for commissions on the original leases, three years at five per cent and two years at three per cent. Then they recite: "On the two successive options for five years each, the commission is to be paid when each option is exercised." These invoices are not subscribed by Meyer Mfg. Company who, appellant says, is the party who agreed to pay such compensation. They bear the personal initials and O.K.s of individuals who are the president and secretary of that company but they do not purport to be the acts of the corporation nor are they addressed to Elbinger Company. The trial court found, and the record indisputably supports the finding, that the O.K.s were not contractual but were only an intraoffice authorization to issue checks in payment of the invoices. The checks were sent to Elbinger Company with the invoices stamped "Paid Under Protest" with covering letters, signed by Meyer Mfg. Company, which stated that the payments were made under protest. Elbinger Company attempts by integration to use the signature of Meyer Mfg. Company on these letters as substitutes for that company's nonexistent signature on the invoices. We consider that corporate signatures to letters stating that inclosed payments are made under protest, referring also to invoices which state that they are paid under protest, are not corporate signatures of agreement with the invoices.
When the original terms, begun in 1942, ran out in 1947, A P Company exercised the option given it by its leases to extend the terms for another five years. Soon afterward Elbinger Company sent Meyer Mfg. Company an invoice for commissions claimed to be due on rents payable during that period. Meyer Mfg. Company wrote Elbinger Company that the invoices were not correct in their dates referring to the leases and asked for corrected invoices which evidently were supplied, for Meyer Mfg. Company paid them. These invoices do not mention subsequent renewals or obligation to pay commissions other than the current ones.
Meyer Mfg. Company's letter refers only to the 1947 invoice which refers only to commissions which Elbinger Company claims then to be due and payable. Meyer Mfg. Company's signature may not be lifted from such a letter to be integrated with a document to which it does not refer, such as an invoice of February 12, 1942, containing different compensation provisions.
The fact that Meyer Mfg. Company twice paid the bills of Elbinger Company for commissions that company alleged had come due is not a substitute for a promise in writing signed by Meyer Mfg. Company to pay future claims. We look in vain in the exhibits separately and collectively for such a promise. Without it, because of sec. 240.10, Stats., the alleged contract to pay them is void. We must hold it so here.
Elbinger Company appealed also from an order of the trial court denying a motion, made after judgment to supplement, amend, and modify the findings of fact. Appellant's brief and appendix do not tell us except in such general terms what it asked the trial court to do or in what respect that court erred in its refusal. We doubt that the order of denial is appealable but, if it is, appellant has given us nothing to work with. This portion of the appeal must be dismissed.
By the Court. — Judgment affirmed. Appeal from order dismissed.
FAIRCHILD, J., took no part.