#### Grieb and another, Respondents, vs. Koeffler, and another, Appellants.

*February 2*

February *23, 1906.*

*Brolcers: Contract: Performance: Evidence: Admissibility: Appeal and error: Curing error: Increased value.*

1. When a broker contracts to procure a purchaser for real estate on commission it is not essential that he should himself bring the purchaser bodily to the owner, but it is sufficient if through his efforts a person is found within the time limited, or if no time is limited within a reasonable time, who comes to the owner ready and willing to purchase the property at the required price.

2. In an action by real-estate brokers for commissions, the evidence, stated in the opinion, is *held*sufficient to sustain a verdict for plaintiffs.

3. In an action by real-estate brokers for commissions, it was claimed by the defendant that the sale was in fact made through the efforts of another broker, and the defendant was asked to state the circumstances under which an option, which preceded the sale, was finally made, and a general objection to the question was sustained. *Held*error, but cured by subsequent testimony.

4. In an action by real-estate brokers to recover commissions, under the evidence it is *held*that the rule that where the condition or value of the property has materially changed between the first interview with the broker and the time of the sale it is the duty of the broker to consult his principal and ask for new instructions before making a sale, had no application.

Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.

*Affirmed.*

This is an action to recover commissions upon the sale of real estate.' It appeared by the evidence that the plaintiffs were partners in the real-estate business in Milwaukee, and that .the defendants owned a number of lots in the village of North Milwaukee which they desired to sell. In the latter part of June, 1902, some conversation took place between the *315plaintiffs and tbe defendant *Hugo Koeffler*concerning these lots. Tbe plaintiffs claim that tbe defendant *Koeffler,*who* was acting for himself and tbe other defendant, put tbe lots in tbe plaintiffs’ bands for sale, and agreed that if a purchaser was obtained for more than $6,500 tbe plaintiffs should receive as their commission all that was realized over that sum. Tbe defendants, on tbe other band, claim that they made no such agreement, but simply stated to tbe plaintiffs that they would sell tbe lots to them for $6,500 net. Subsequently, and in tbe month of October following, tbe defendants, in fact sold tbe lots to one Kootz for $8,000, and tbe plaintiffs claim that they procured Kootz as a purchaser, and this action is brought to recover tbe sum of $1,500 as their commission. Tbe following special verdict was rendered:

“(1) Did tbe defendant *Hugo Koeffler*make an agreement with the plaintiffs that, if plaintiffs would procure a purchaser for defendants’ land in North Milwaukee, defendants would pay plaintiffs for such services all that defendants would realize on a sale of said land to such purchaser over and above $6,500 ? *A.*Yes. (2) If you answer tbe first question yes, bad tbe defendant *Hugo Koeffler*authority to make such agreement for and in behalf of bis brother, *Charles A. Koef-fler?*That is answered by tbe court in tbe affirmative by consent of tbe parties. (3) If you answer tbe first question yes, was Hie authority of tbe plaintiff to procure a purchaser for said land revoked by tbe defendant *Hugo Koeffler*at any time before October 11, 1902 ? *A.*No. (4) Were tbe plaintiffs tbe procuring cause of defendants’ sale of land to William Kootz? *A.*Yes. (5) Under all tbe circumstances, and in view of a lapse of time between June 19 and October 11, 1902, were the defendants justified in assuming that the plaintiffs bad abandoned finding a purchaser for this land ? *A.*No. (6) Was tbe plaintiff *Qrieb,*before October 11,. 1902, employed by William Kootz for a'commission to procure land for said Kootz in North Milwaukee? *A.*No.”

Tbe defendants made proper motions .for nonsuit, also to^ direct a verdict, also for a new trial; all of which motions be*316ing overruled, judgment was rendered upon the verdict for tbe plaintiffs, and tbe defendants appeal. ■

*C. A. Koeffler, Jr.,*for tbe appellants.

Eor tbe respondents there was a brief by *A. U. Blaichley,*•attorney, and *J. W. Wegner,*of counsel, and oral argument by *Mr. Blaichley.*

WiNsnow, J.

Wben a real-estate agent contracts to pro-•eure a purchaser for real estate upon commission it is not essential that be should himself bring tbe purchaser bodily to tbe owner of tbe real estate, but it is sufficient if through bis efforts a person is found within tbe time limited, or if no time is limited within a reasonable time, who comes to tbe owner within such time ready and willing to purchase tbe property at tbe required price. There was sufficient evidence to entitle "the jury to find- that tbe purchaser Kootz in tbe present case was procured through the efforts of tbe plaintiffs; indeed, there was sufficient evidence to sustain all the findings of the •special verdict.

No exceptions were reserved to the charge of the court, and the only ruling upon evidence which deserves special treatment will be briefly noticed. The defendants claimed that the sale to Kootz was in fact made through the efforts of one Place, and the defendant *Hugo Koeffler*was asked by his •counsel to state the circumstances under which the option was finally made to Mr. Kootz, and a general objection to the question was sustained. This was an erroneous ruling, because it was certainly competent for the defendants to show, if they could, the circumstances under which the sale was .actually made, as bearing upon the question as to who was the procuring cause of the sale. However, the facts concerning Mr. Place’s connection with the matter were afterwards quite fully ■testified to by *Mr. Koeffler.*He testified in effect that he first talked with Mr. Place about the property about the 6th of ‘October; that the price of $8,000 was definitely fixed when *317Mr. Place saw Mm on the 8th of October; that on the 9th or 10th of October Mr. Place told him that Mr. Kootz was the man who was going to buy the property, and requested that he make a thirty-day option to Kootz; that Place gave him a check for $300 to pay on the option; that he then executed the-option and dated it October 11th at Mr. Place’s request; and that the deed was made November 10th to Mr. Kootz. He also* admitted that, when he talked with *Grieb*in June, *Grieb*told him that he proposed to offer the property to Mr. Kootz. Thus the erroneous ruling seems to have been practically reversed,, the circumstances under which the option was made to Mr. Kootz were practically stated, and no suggestion was made that there were any further relevant facts. Such being the-situation, we hold that the error in the original ruling was-cured.

It is claimed that the evidence showed that the value of the-property had so materially increased between the first interview with the plaintiffs and the time of the sale that it was-the duty of the court as matter of law to hold that the plaintiffs’ agency contract was at an end before the sale to Kootz: was made, under the ruling in *Wasweyler v.*Martin, 18 Wis. 59, 46 N. W. 890. While there was some rather shadowy evidence of increase in value there was also evidence to the contrary, and the court would not have been justified in making-any such ruling. Furthermore, it appeared without dispute that the defendants knew when they made the option that Mr. Kootz was the man whom the plaintiffs proposed to secure as-a purchaser, and the jury found affirmatively that the defendants were not justified in assuming that the plaintiffs had abandoned the attempt to find a purchaser. Under these circumstances, the principle of the *Wasweyler Case*has little, if’ any, application.

*By the GouH.*— Judgment affirmed.