#### Wisconsin Farm Land Company, Appellant, vs. Bullard, Respondent.

*September 29*—

October *20, 1903.*

*(1, 2) Estoppel: Pleading: Evidence: Immaterial error. (3,*4) *Special verdict: Review on appeal.*(5) *Real-estate brokers: Commissions: Sale by owner.*

1. Wliere an estoppel *in pais*was not pleaded, although there was ample opportunity to do so, evidence to establish such an estoppel is inadmissible.

2. Error in admitting evidence to show that plaintiff was estopped to insist upon a certain contract obligation is immaterial where the jury has found upon sufficient evidence that plaintiff released defendant from that obligation.

3. A special verdict is sufficient if it covers all the facts put in issue by the pleadings in respect to which the evidence is conflicting.

4. If a finding of the jury is supported by any credible evidence it must be regarded on appeal as a verity.

5. In an action by a real-estate broker to recover a commission on a sale of land made by the owner, the jury found that the plaintiff was the procuring cause of the sale, and glso that plaintiff had released the defendant from the obligation to pay a commission in case he sold the land himself. *Reid,*that the finding that plaintiff was the procuring cause méant no more than that plaintiff directed the attention of the purchaser to the land and that this was what led up to the sale; and that such fact did not entitle plaintiff to a commission, in view of the subsequent release ■ which left defendant free to deal with such purchaser.

Appeal from a judgment of the circuit court for Clark county: James O’Neill, Circuit Judge.

*Affirmed.*

Action upon a contract worded as follows:

“This agreement, made and entered into this 14th day of August, 1901, by and between the *Wisconsin Farm Land Go.,*of Neillsville, Wisconsin, and *Andrew Bullard,*Town of Weston of Clark Co., Wisconsin.

“Witnesseth : The said *Andrew Bullcurd*for and in consideration of the agreements hereinafter made, does hereby *321appoint the said *Wisconsin Farm Land Company*his exclu? sive agents for the period of until the first of March from the date hereof, except as hereinafter provided, for the sale of the following described lands and properties.

“HE of PTE, S. 24, Town 25, 3 W, Acres 40.

“SE of HE, S. 24, Town 25, 3 W, Acres 40.

“The price of said lands and properties shall be $4,500. And in case said lands and properties are sold, $500 shall be retained bj the *Wisconsin Farm Land Co.*from the first cash payment, as payment for their services in effecting snch sale, and expenses incurred by them in advertising said property, or showing same to prospective buyers. Said sum of $500 shall be in full payment for all services and expenses of said *Wisconsin Farm Land Co.*and no further demand for such services or expense shall be made. The said *A. J. Bullard*hereby reserves the right to, if possible, find a purchaser for, and make sale of the above described lands and properties at the said price of $4,500. And in case a purchaser for said properties is so found he hereby agrees to forthwith bring such purchaser to the office of the *Wisconsin Farm Land Co.*at Ueillsville, where all papers of transfer shall be made and executed without cost; and shall pay the *Wisconsin Farm Land Co.*the sum of $500 as payment for expenses incurred by them in advertising of said properties and commission for the sale thereof. It is further agreed that in case no purchaser is found for said properties within the time specified, that the said *Wisconsin Farm Land Co.*shall make no charge for such services rendered or expenses incurred by them in their efforts to effect such sale; except where special expense is authorized and ordered by the said *A. J. Bullard*in which case such expense shall be borne by him whether the sale is effected or not.

“Signed and agreed to on the date first above written.'

“Wisconsin Paem Land Company,

“Per R. W. Canfield.

“A. J. Buldaed.”

Plaintiff alleged in the complaint the making of such contract; that pursuant thereto it procured one Holtz as prospective purchaser to examine the land; that subsequently d&-fendant, independently of plaintiff, contracted such land to *322Iloltz for $4,350, receiving $150 as a down payment; tbat later tbe contract was fully consummated, whereby plaintiff became entitled to tbe commission of $500 stipulated for. Defendant pleaded want of consideration to support tbe contract, and tbat be was released therefrom before tbe sale was made.

There was conflicting evidence upon three propositions, which were submitted to tbe jury for solution by special verdict. Tbe result was as follows:

“1. Was tbe *Wisconsin Farm Land Company*tbe procuring cause of tbe purchase by Holtz of defendant’s farm? *A.*¡Tes.

“2. Did tbe plaintiff by its agent Canfield, beforé tbe sale of tbe farm, release tbe defendant from tbe obligation to pay any commission in case defendant sold tbe farm himself? *A.*Tes.

“3. If you answer tbe last question ‘Tes’ then did defendant rely and act upon such release in selling to Holtz? *A.*Tes.”

Plaintiff moved for judgment on tbe verdict, and defendant moved to change tbe answer to question No. 1 from “Tes” to “No” and for judgment. Both motions were denied. Judgment was thereafter ordered dismissing tbe complaint with costs.

For tbe appellant there was a brief by *Bturdevani & Ciarle,*and oral argument by *L. M. Bturdevant.*

For tbe respondent there was a brief by *Chas. F. Crow*and *J. B. & C. B. Sturdevant,*and oral argument by *Mr. Grow.*

They - argued, among other things, tbat plaintiff’s exclusive agency did not prevent defendant from making tbe sale himself before plaintiff should do so, even if be bad failed to reserve this right in tbe contact. *Dole v. Sherwood,*41 Minn. 5C6, 16 Am. St. Rep. J31. Defendant could sell the farm at any time before learning tbat plaintiff bad a purchaser for it at tbe stipulated price, without being liable to pay a commission. *D arrow v. Harlow,*21 Wis. 302; *Frenzer v.*Lee, 90 *323N. W. 914; *McDonald v. Basing,*43 Mich. 394, 5 N. W. 439; *Baars v. Hyland,*65 Minn. 150. The most that plaintiff did was to inform Holtz it had this land for sale, while showing him other lands and trying to sell him other farms. This would not.make plaintiff the procuring cause of the sale by defendant. *Lawrence v. Weir,*3 Colo. App. 401, 44 L. E. A. 335, note; Comm. *Nat. Bank v. Hawkins,*35 Ill. App. 463; *Doonan v. Ives,*13 Ga. 296, 301; *JEllsmore v. Gamble,*62 Mich. 543, 541. Defendant had under the facts in this case the right to sell his farm for less than the price stipulated in the contract. *McArthur v. Slauson,*53 Wis. 41. Unless plaintiff had found a purchaser ready to fulfill the contract and such a customer as defendant was bound to *accept,*it would not be entitled to any commission. *Fraser v. Wyckoff,*63 N. T. 445; *McArthur v. Blauson,*53 Wis. 41. If plaintiff had negotiations with Holtz, but abandoned them without bringing him and the defendant together, defendant could afterward sell the farm to Holtz without being liable to plaintiff. *Wylie v. Marine Nat. Bank,*61 N. T. 415; *Frenzer v. Lee,*90 N. W. 914; *Platt v. Johr,*9 Ind. App. 58, 44 L. E. A. 343, note.

Maeshall, J.

Evidence was allowed against appellant’s objection, to the effect that before making the contract of sale with Holtz respondent had a conversation with Canfield, appellant’s managing agent, in which it was agreed that if respondent effected a sale of the land appellant would make no claim for commission under the contract; and that, relying thereon, respondent contracted with Holtz, making the price ■of the land to him $4,350. Error is assigned on that. The evidence seems to have been offered to establish an estoppel *in pais.*It was certainly not competent for any other purpose. As no such estoppel was pleaded and there was ample ■opportunity to do so, the evidence was irrelevant and should have been rejected. *Gill v. Rice,*13 Wis. 549; *Warder v.**324*Baldwin,*51 Wis. 450, 8 N. W. 257; *Gans v. St. Paul F. & M. Ins. Co.*43 Wis. 108. However, tbe error was not prejudicial if tbe finding of tbe jury that respondent was released from bis contract cannot be disturbed.

Tbe point is made that tbe verdict did not dispose of all the issues, since it only covered tbe subject of whether respondent was released from his contract; that tbe evidence on one side was to tbe effect that there was an absolute release, and on tbe other that there was a conditional or partial release, hence that tbe questions should have been framed sc as to require tbe jury to pass on whether there was an absolute or partial release. In that counsel falls into tbe common error of supposing that a special verdict should be framed tc cover each particular matter of dispute between witnesses instead of facts in issue under the pleadings. The only proper test to which a special verdict should be subjected is the pleadings. If it covers all the facts therein put in issue, in respect to which the evidence is conflicting, it is sufficient. Such is the plain letter of the statute, sec. 2858, Stats. 1898. *Mauch v. Hartford,*112 Wis. 40, 54, *81*N. W. 816; *Goesel v. Davis,*100 Wis. 678, 76 N. W. 768; *Baxter v. C. & N. W. R. Co.*104 Wis. 307, 313, 80 N. W. 644; *Cullen v. Hanisch,*114 Wis. 24, 89 N. W. 900. The only issue raised by the pleadings on the subject of a release from the contract was whether respondent was wholly -released. The form of the question submitted fitted that issue perfectly. If the attention of the jury had not been particularly called to the state of the evidence on the subject there would have been no reasonable probability of their rendering such a verdict as they did without coming to the conclusion that there was an absolute release as testified to by respondent. But the possibility of any mistake in that respect was effectually guarded against by the instruction given by the court to the effect that if the jury believed that there was but a partial or conditional release they should answer the question “No.”

*325It is claimed that tbe finding of tbe jury as to appellant baying released tbe contract is contrary to the weight of tbe ■evidence. That may be. If such be tbe fact it constitutes no ground for tbe reversal of tbe judgment. It is too familiar to warrant more than a mere reference to it, that if there is any credible evidence to support tbe finding of tbe jury their •decision upon appeal must be regarded as a verity.

Tbe further claim is made that, tbe jury having found that appellant was tbe procuring cause of tbe sale to Holtz, it was ■entitled to tbe commission stipulated for in tbe contract, as, according to respondent’s own testimony, be was not to be deemed released except as regards a sale made by him; that tbe vei’dict that appellant was the procuring cause of tbe sale is wholly inconsistent with tbe view that respondent made tbe ■sale. We do not look at the findings of tbe jury and tbe evidence that way. Tbe finding that appellant was a procuring •cause of tbe sale obviously means no more than that it drew Holtz’s attention to tbe farm, and that its act in that regard was what led up to tbe sale. That finding would have been fatal to respondent if tbe jury bad decided that tbe release was conditional or partial, as appellant’s evidence tended to prove. Having decided that the release was unconditional, tbe mere fact that appellant so interested Holtz in respondent’s land that it led to bis making a sale thereof, does not furnish appellant a ground of action. Notwithstanding it directed Holtz’s attention to tbe land, it was perfectly competent for it to subsequently release respondent absolutely from bis contract, leaving him free to deal with Holtz or any one else, as tbe jury found was done.

Tbe foregoing leaves nothing more that need be said in disposing of this case. Tbe judgment must be affirmed.

*By the Gourt.'*— So ordered.