Schoenmann v. Whitt

(dissenting). The contract was one for services in which the consideration necessary to support the contract is not the performance of the services but the agreement *336to so perform. I think there was an acceptance of tbe written contract by tbe plaintiffs, bence an agreement upon tbeir part to perform. Tbe opinion of tbe court seems to me to» be in conflict witb elementary principles of tbe law of contracts, and to confound failure to perform witb lack of consideration.

It is perfectly apparent that the signing of this paper by the defendant did not make a contract. It was not signed by the plaintiffs and contained no stipulation requiring them to do anything. At the time of its delivery to the plaintiffs it was entirely lacking in mutuality. The plaintiffs might have accepted the implied obligations of the writing on their part by doing the work and incurring the expense that such writing contemplated should be performed and incurred, and such acceptance, so made, would result in a binding contract. Arnold v. Nat. Bank, 126 Wis. 362, 365, 105 N. W. 828; Hooker v. Hyde, 61 Wis. 204, 207, 21 N. W. 52; Superior C. L. Co. v. Bickford, 93 Wis. 220, 67 N. W. 45; Goward v. Waters, 98 Mass. 596, 598; Lapham v. Flint, 86 Minn. 376, 90 N. W. 780, 781.

The implied obligation contemplated by the writing required plaintiffs to use ordinary diligence in endeavoring to make a sale of the property, and the burden was upon them to show that such diligence had been exercised by them. The inherent weakness of the plaintiffs’ case was their failure to show that they had in good faith assumed and carried out their part of the obligation before the defendant consummated a sale of the property without assistance of any kind from them.

There is no finding as to the time that elapsed between the signing of the memorandum by the defendant and the sale of the farm by him. There is no finding, and no evidence, that any expense was incurred by the plaintiffs in connection with the sale of the lands. There is no proof that any par*335ticular time was spent or effort was made by plaintiffs in endeavoring to effect a sale, except as appears in the findings of the conrt. There is an express finding by the conrt that plaintiffs “had not exhibited said farm to any purchaser or taken any steps to sell the same or incurred any expense therein, except that the plaintiff John Schoenmann had talked to one person with respect thereto, and expected to exhibit said farm to said person, but before doing so was notified by the defendant that the farm was already sold.” How long this conversation took place after the writing was signed by the defendant does not appear. Ueither does it appear whether the conversation was merely casual, or whether time and effort were consumed in looking up this particular person, or whether he had the ability or inclination to purchase the farm in question, or why he had not looked it over before the sale was made. The finding of the court negatives the idea that the plaintiffs had accepted their obligation by using any reasonable degree of diligence to make the sale of the farm. It is true the plaintiffs claim that the finding of the court in respect to efforts used by them to sell the farm is not a correct summary of, or conclusion to draw from, the testimony in the case. The finding seems to embody every material thing that was testified to on the trial, with the possible exception of some evidence showing that one of the plaintiffs had communicated to the defendant the information that they expected to have a prospective purchaser look at the farm. It is very doubtful if this question is preserved by any proper exception to the findings of fact made by the court, but we do not deem the evidence of sufficient importance to change the result of our decision in any event.

By the Court. — Judgment affirmed.