Abbott v. Dow

• Decision Date: 26 November 1907
• Citation: 133 Wis. 533,113 N.W. 960
• Parties: ABBOTT v. DOW ET AL.
• Court: Wisconsin Supreme Court

133 Wis. 533

113 N.W. 960

ABBOTT

v.DOW ET AL.

Supreme Court of Wisconsin.

Nov. 26, 1907.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Edgar Abbott against Robe Dow and others. Judgment for defendants. Plaintiff appeals. Reversed and remanded, with directions.

Plaintiff claims that he went to North Dakota, at the solicitation of the defendants, to examine lands with view to purchase; that he was taken by defendants' agent to the line between sections 32 and 33 in township 146 N. and range 93 W., in Mercer county; that section 32 was government land and open to homestead, while section 33 and many thousands of acres of other lands in the general vicinity were owned by the defendants for sale, all of said section being classed by them as $7 per acre land; that, after examining the government section, he expressed approval of the N. E. 1/4 thereof and also examined the adjoining quarter section, the N. W. 1/4 of 33, belonging to the defendants, with a view to purchase that in connection with his homestead entry; that, while no definite conclusion was reached or declared when in the neighborhood of the lands, he expressed this purpose to the defendants' agent; that thereuponthe parties returned to Dickinson, where there was a land office, and, with the aid of defendants' agent, Welton, he duly entered the N. E. 1/4 of section 32, and that his decision to purchase the adjoining quarter section was then communicated to Welton, who proposed to draw land contracts. Accordingly the latter brought forth two blanks, and seated plaintiff and one Rhodes at a table, and dictated to them the written matter to be inserted in the blanks, which they both wrote at the same time from this dictation, and thus inserted description. In both contracts the land was first described as the N. E. 1/4 of section 32. The contracts were signed with some haste on July 9, 1904, and the duplicate which had been written by the plaintiff was kept by Welton, while the other duplicate, marked by Welton “Copy,” was left with Rhodes to be delivered to the plaintiff when he should have made his first payment. He made that payment in a few weeks, and gave promissory notes to evidence subsequent payments, viz., $200 November 1, 1904, $300 November 1, 1906, and $400 November 1, 1909, and received that copy of the contract which had been written by and left with Rhodes, and made another payment of $200 and interest in November, 1904. About April, 1905, he again went to North Dakota to make some improvement on his homestead land, and was informed that the adjoining quarter section, namely, the N. W. 1/4 of section 33, was claimed to have been purchased from the defendants by a stranger. He thereupon examined his land contract, and found that it did not describe that quarter section which he supposed he had purchased, but did describe the N. E. 1/4 of section 32, which was land that the defendants did not own, and which he had entered from the government. He immediately communicated with them and requested them to change the contract so as to describe the lands which he had bought, and they replied that the copy of the contract in their possession covered the N. E. 1/4 of section 33, and, when their copy of the contract was introduced in evidence, it disclosed that the 32 in figures had been changed, apparently with the same indelible pencil with which written, to 33. That paper had been written by the plaintiff with an indelible pencil borrowed from Welton and returned to him immediately at the same time that the paper was delivered over to him. Welton claimed that he had discovered the mistake in numbering the section 32 instead of 33 while the paper was being written, and had called plaintiff's attention to the mistake, and plaintiff himself had made the change. This was contradicted, but found to have occurred by the court. The defendants were in 1905 unable to substitute the N. W. 1/4 of section 33, for the reason that they had sold it to a third person, and insisted that the contract had really been for the N. E. 1/4 of section 33. Plaintiff offered to return the contract, and demanded rescission and the repayment to him of the moneys which he had paid, which being refused he brought this action to accomplish that purpose. The court found that plaintiff and Welton did agree upon the sale and purchase of the N. E. 1/4 of section 33, and that the duplicate of the land contract held by the defendants correctly expressed their agreement, and thereafter entered judgment denying the relief prayed for by the plaintiff, from which judgment plaintiff appeals.

Masters, Graves & Masters, for appellant.

Olin & Butler, for respondents.

DODGE, J. (after stating the facts as above).

We find difficulty in understanding the meaning of the trial court intended to be expressed by the findings, especially in view of the evidence. By finding 2 it is declared that on July 9th plaintiff agreed with Welton “to purchase one-quarter of said section 33” at terms as to price and credits carefully specified. It is undisputed that all these terms were agreed upon before commencing the draft of the contract. Welton himself so testifies unambiguously, so we assume that finding relates to a time prior to the writing. Then findings 3 and 4 describe the clerical process by which the written contract was prepared in duplicate; and then comes finding 5, upon which alone can the judgment rest. It is as follows: “That plaintiff talked of purchasing the N. W. 1/4 of section 33 in said township 146, but that no contract of sale was entered into or agreement made until the writings above mentioned were executed, at which time plaintiff agreed to buy the N. E. 1/4 of section 33.” Either this means that until the signing of the paper the minds of the parties never in fact met on the question which of the four quarters of section 33 plaintiff wished and had decided to purchase, or that, as mixed matter of law and fact, their transactions prior to that moment had not reached the stage of legal contract or agreement. In deference to our confidence in the legal learning of the trial judge, we should assume the former meaning but for the consideration that all the evidence, including the testimony of Welton, shows clearly that before bringing forth the contract blanks to be filled he had full understanding from plaintiff, or the third party, Rhodes, which quarter section was selected and agreed to be purchased, and undertook to dictate the description of that quarter to the two scriveners. He says: “At the hotel they said they would take the quarter, and they gave me the description of the quarter they wanted. * * * I simply gave it to him (in dictating) as I remembered he had given it to me.” Indeed, respondents' counsel frankly concedes that such understanding had been reached, although he contends against any conclusion that the N. W. 1/4 was the one agreed on. We therefore must concludethat the trial court did not intend to find that a meeting of the minds of the parties had not in fact been reached before the writing. If the minds of the parties had met on the sale and purchase of a particular parcel of land, and they signed a writing which both supposed described that parcel, but which, by clerical error, described some other, a case is presented for a court of equity to ascertain the true agreement and interpose to prevent the writing, as far as variant, being enforced as the contract of the parties, in absence of negligence or acquiescence. Hurd v. Hall, 12 Wis. 112;Maldaner v. Beurhaus, 108 Wis. 25, 33, 84 N. W. 25;Kammermeyer v. Hilz, 116 Wis. 313, 92 N. W. 1107;Rowell v. Smith, 123 Wis. 510, 102 N. W. 1;Scheuer v. Chloupek, 130 Wis. 72, 109 N. W. 1035; 2 Pomeroy, Eq. Jur. (3d Ed.) §§ 853, 859, 869, 870; 4 Pomeroy, Eq. Jur. (2d Ed.) § 1377. There is no question or dispute upon the evidence that both parties did suppose the writing contained a correct description of the quarter section previously agreed on. Welton says he attempted to dictate the proper description thereof....