Opinion
No. 262.
Argued November 3, 1971. —
Decided November 30, 1971.
APPEALS from an order of the circuit court for Dane county: W. L. JACKMAN, Circuit Judge. Affirmed.
For the appellant there were briefs by Whyte, Hirschboeck, Minahan, Harding Harland, S.C., attorneys, and James D. Wing of counsel, all of Milwaukee, and oral argument by Mr. Wing.
For the respondent there was a brief by La Follette, Sinykin, Anderson Abrahamson and Jay W. Winter, attorneys, and Christopher J. Wilcox of counsel, all of Madison, and oral argument by Mr. Wilcox.
This case involves an action by the plaintiff-appellant, Thorp Sales Corporation, to hold the respondent, Mary Jo Lease, responsible for breach of a real estate listing contract signed by D. James Lease, her deceased husband, and additionally for inducing her husband to repudiate that contract, and further for making Mr. Lease her agent for entering into that contract. On May 31, 1969, Mr. Lease entered into a listing contract in regard to a certain farm property owned solely by him. On October 24, 1969, Mr. Lease was seriously injured in an automobile accident. He died as a result of those injuries on December 1, 1969. On November 6, 1969, Thorp procured a prospect for the property whose terms of purchase differed from those in the listing contract. After Mr. Lease's death, his widow, individually and as administratrix of his estate, executed an option agreement with the same prospect at terms differing from those in the option with Thorp.
On March 11, 1970, Thorp filed a claim against the estate in the probate branch of the county court of Dane county. This claim was for its commission on the contract. That claim is still pending.
On June 25, 1970, Thorp began an action in the circuit court for Dane county against respondent individually and as administratrix of her husband's estate. Three causes of action are asserted:
1. Against the administratrix for breach of contract by the deceased;
2. Against Mrs. Lease individually for inducing her husband to repudiate the contract;
3. Against Mrs. Lease individually in that Mr. Lease was acting on his own behalf and also as agent for wife when he entered into the listing contract.
In this action Thorp seeks 10 percent of the total purchase price from either the estate or from Mrs. Lease individually. The amount of such commission is approximately $50,000.
Respondent entered a demurrer to all three causes of action. The circuit court, Hon. W. L. JACKMAN presiding, sustained the demurrer to the first cause of action, finding that the matter should be litigated in the probate court and that the circuit court had no jurisdiction to consider the claim against the administratrix. The demurrer to the second and third causes of action was overruled. Thorp appeals from that part of the order sustaining the demurrer, while Mrs. Lease appeals from that part of the order overruling her demurrer to the third cause of action.
Two issues are raised by the two appeals:
1. Did the circuit court properly conclude that it lacked jurisdiction of the first cause of action against respondent as administratrix because of the pending probate proceedings?
2. Does sec. 240.10, Stats., bar the introduction of parol evidence to prove an agency relationship between respondent and her husband?
The scope of the circuit court's jurisdiction.
In Cawker v. Dreutzer this court said:
(1928), 197 Wis. 98, 128, 129, 221 N.W. 401; see also: 1 Callaghan's, MacDonald, Wisconsin Probate Law (6th ed.), p. 20, sec. 1.120, note 80.
"[U]nless it is made to appear that the county court before which an estate is being administered cannot afford as adequate, complete and efficient a remedy as the circuit court, the circuit court should not assume jurisdiction, and to do so will be treated as reversible error."
In the present case Thorp recognizes that it must demonstrate that its remedy in probate court would be inadequate or inefficient, but it fails to make such a showing. One of the cases cited by the appellant in support of the proposition that the circuit court should have accepted jurisdiction to avoid multiplicity of suits, Burnham v. Norton, was modified by Cawker. Other cases cited by appellant are Cannon v. Berens, involving an action against a number of defendants who could not be reached by the county court's jurisdiction; and Milwaukee v. Drew, involving multiple parties beyond the jurisdiction of the county court who sought a remedy not available in probate court.
(1898), 100 Wis. 8, 75 N.W. 304.
Supra, footnote 1, at page 120.
(1943), 244 Wis. 271, 12 N.W.2d 53.
(1936), 220 Wis. 511, 265 N.W. 683.
Neither situation is presented here. There are no multiple parties as to the first cause of action and the relief sought against the administratrix is available in the probate court. Thorp is pursuing that remedy. It has not shown that the relief available in the probate court is inadequate or inefficient. Therefore, the circuit court properly sustained the demurrer to the first cause of action.
Effect of sec. 240.10, Stats.
As to respondent's, Mrs. Lease's, demurrer to the third cause of action on the basis that there are insufficient facts to constitute the action, it is essential to bear in mind the two separate types of agency relationship which are involved. The first agency is between the deceased, Mr. Lease, and Thorp. The second claimed agency, which forms the basis for the third cause of action, is between the deceased and his wife.
Mrs. Lease asserts that sec. 240.10, Stats., precludes Thorp from attempting to prove the second agency relationship inasmuch as such relationship does not appear on the face of the contract.
Sec. 240.10, Stats., is an extension of the statute of frauds, designed to prohibit recovery for services where there is no written contract.
Hale v. Kreisel (1927), 194 Wis. 271, 272, 215 N.W. 227; Purtell v. Tehan (1966), 29 Wis.2d 631, 139 N.W.2d 655.
"240.10 Real Estate agency contracts. (1) Every contract to pay a commission to a real estate agent or broker or to any other person for selling or buying real estate 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, the commission to be paid and the period during which the agent broker shall procure a buyer or seller, be in writing and be subscribed by the person agreeing to pay such commission."
This statute is designed to prohibit the introduction of parol evidence to prove the first agency relationship here — that between Mr. Lease and Thorp. The question posed by Mrs. Lease's demurrer to the third cause of action, however, is whether this same statute bars parol evidence to prove the second agency relationship — that between Mr. Lease and his wife. Respondent argues that the action is barred by the statute, while appellant contends that it has the right to produce evidence of the agency relationship.
The purpose of this statute is to protect the public from dishonest real estate agents. It was not intended to govern the relationships between joint owners of property. Where an agent entered into an oral agreement with his principal to jointly purchase the land and then refused to honor the agreement an oral contract would not be barred by the statute of frauds and a constructive trust is created.
Krzysko v. Gaudynski (1932), 207 Wis. 608, 614, 242 N.W. 186; Hilboldt v. Wisconsin Real Estate Brokers' Board (1965), 28 Wis.2d 474, 484, 137 N.W.2d 482.
Stein v. Soref (1949), 255 Wis. 42, 38 N.W.2d 3; 2 Restatement, Agency 2d, p. 271, sec. 414 (2).
The rule in other jurisdictions is that an oral agreement between husband and wife for one to act as the agent for the other is not invalidated by the statute of frauds. Consistent with this rule is Genske v. Leutner, wherein this court held that an oral agreement of agency between husband and wife is enforceable and not rendered invalid by the statute of frauds or sec. 240.10, Stats. The complaint in this case alleges an agency relationship and subsequent ratification by the parties of the relationship. Under such facts, a valid cause of action is alleged. The demurrer was properly overruled.
Annot. (1953), 27 A.L.R. 2d 1285, 1300, sec. 13; see also: Seavey, Law of Agency (hornbook series, 1964), p. 260, sec. 158 C.
(1926), 191 Wis. 125, 210 N.W. 369.
It should be noted, however, that in Wangen v. Leum (1970), 46 Wis.2d 60, 174 N.W.2d 266, we concluded that an agency relationship is not legally sufficient to transfer a homestead without the joinder of the wife in the conveyance.
By the Court. — Order affirmed. No costs on appeal.