Am. M Co. v. A. Geo. Schultz Co.

• Citation: 267 N.W. 19,221 Wis. 291
• Parties: AMERICAN METAL PRODUCTS CO. v. A. GEO. SCHULTZ CO. ET AL.
• Decision Date: 28 April 1936
• Court: United States State Supreme Court of Wisconsin

221 Wis. 291

267 N.W. 19

AMERICAN METAL PRODUCTS CO.

v.A. GEO. SCHULTZ CO. ET AL.

Supreme Court of Wisconsin.

April 28, 1936.

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Gregory, Judge.

Reversed.

American Metal Products Company brings suit for specific performance of an agreement entered into by it with the A. Geo. Schultz Company. Judgment dismissing plaintiff's complaint was entered January 7, 1935.

Plaintiff and A. Geo. Schultz Company, hereinafter referred to as defendant, were operating factories in the same industrial territory when plaintiff secured an option on land adjacent to defendant's property and immediately east thereof. This tract, for the purposes of the statement of facts, is sufficiently described as tract No. 1. The defendant's tract, referred to as the “Schultz tract,” had the tracks of two railroad lines immediately west of it. The plaintiff was negotiating for tract No. 1, because it desired to construct a factory building, and it secured an option thereon. Defendant desiredtract No. 1 and a parcel of land immediately east thereof which may be described as tract No. 2. There was a third parcel of land, or “tract No. 3,” east of tract 2. This tract No. 3 was low lying property and required filling if it was to be level with the street grade. Negotiations between plaintiff and defendant were carried on which resulted in the entering into of a written agreement which read as follows:

“Whereas, The American Metal Products Company of Milwaukee, Wisconsin, has purchased the following described property on Burnham Street, to wit: * * * Which will be hereafter referred to as tract number one.

Whereas, The A. Geo. Schultz Company of Milwaukee, Wisconsin, desires this tract of land to enlarge its own holdings to meet its needs and has arranged and will purchase another strip of land about one hundred feet wide on Burnham Street, just east of tract number one which hereafter shall be referred to as tract number two;

Whereas the American Metal Products Company can purchase sufficient land on Burnham Street just east and adjoining tract number two to meet its needs consisting of nearly six (6) acres, and hereafter referred to as tract number three, * * * and

Whereas, it appears upon a survey that tract number three will require at least 5500 cubic yards of filling to raise the level of the same so that it will bear the same relation with respect to levels to the grade of Burnham Street as tract number one now bears and it is agreed that it will cost at least one dollar a cubic yard to fill in tract number three, and that it will cost the American Metal Products Company considerably more to construct the foundations for its building on tract number three than it would cost on tract number one for its purposes,

Now Therefore it is mutually agreed by and between the American Metal Products Company of Milwaukee, Wisconsin, party of the first part, and the A. Geo. Schultz Company, party of the second part; as follows: In consideration of the payment of five hundred dollars ($500.00), receipt of which is hereby acknowledged by the American Metal Products Company, and the further payments of five thousand dollars $5000.00), which the said A. Geo. Schultz Company agrees to pay in cash to said American Metal Products Company upon delivery of deed to the seven acres which it has this day purchased from Emily L. C. Trowbridge, Souther heirs and estate of Louise Haller, being tracts number one and two heretofore referred to, said American Metal Products Company does hereby release and transfer any and all right, title and interest which it now has in and to tract number one above described, and hereby authorizes and directs the parties from it purchased said land to transfer any interest it may have in the same to the A. Geo. Schultz Company.

As a further consideration, the said A. Geo. Schultz Company, party of the second part agrees that it will give the Chicago, Milwaukee & St. Paul Railway Company and Chicago & Northwestern Railway Company an easement for a side track on its own land and over tracts number one and two up to the east line thereof, and agrees to construct said track on such easement to the said east line of said property at its own cost and expense, at such time as it will begin building operations and it does hereby grant to said party of the first part, its successors and assigns, the right to connect or extend the said track at the cost and expense of said party of the first part on its own property just east, as well as the right to use and enjoy the said side track for such switching purposes as may be necessary to meet the needs of said party of the first part.

In witness thereof the parties have hereunto caused these presents to be signed and executed this 17th day of June, A. D. 1920.”

The plaintiff complied with the terms of the contract on its part to be performed, and now seeks specific performance by the defendant of its stipulation to provide switching facilities. In its complaint plaintiff describes the facts upon which it claims the existence of a right to require defendant to construct and build at defendant's own cost and expense tracks over an easement and right of way across defendant's land, and to require the defendant to connect the tracts with existing tracks west of lands owned by the defendant and to extend the same to the easterly boundary thereof. The defendant denies the right of the plaintiff to such relief and alleges in its answer “that it was expressly understood and agreed by and between the parties to said contract and in the said letters of June 14, 1920 and June 16, 1920, * * * and that said writing properly construed means that this answering defendant should not be required to give the railroads or the plaintiff therein referred to, and in the complaint referred to, any easement or any rights in or to any portion of the said real estate hereinbefore admitted by it to have been acquired.” Such portions of the letters as are essential to an understanding of the case will be discussed in the opinion.

The case was tried to the court without a jury, and, in addition to facts hereinbefore set out, the court made the following findings of fact: The corporate existence of the parties to the suit; the existence of a belt line running generally northerly and southerly west of and adjacent to the property of the defendant; the existence on the north of the premises here involved of a right of way; that “on November 22, 1917, the then owners of the lands adjoining said tract of the defendant on the east, northeast and north, and adjacent to the said belt line immediately north of defendant's said tract, conveyed a portion of said lands which was immediately north of said tract of the defendant and adjacent to said belt line to one Sivyer Steel Casting Company, by such conveyance reserving to the said owners a strip or belt of land extending in curved direction across the lands so conveyed from the said belt line south to the northerly boundary of the tract of the defendant, and then east adjacent to the north line of said tract of the defendant, to the easterly boundary of the lands so conveyed, such strip or belt of land being by such deed reserved for the erection and use of a side track thereon to serve the lands of such grantors lying east of the said tract of the defendant and also lying east of the said tract conveyed to Sivyer Steel Casting Company.”

The trial court, in its conclusions of law, held that by virtue of the provisions of the contract the time for the granting of the easement to the railroad company and the erection of the side track were contingent upon the commencement of building on defendant's land, and that the true intent and meaning of the parties was such that the time therefor had not arrived when the action was commenced, and dismissed plaintiff's complaint. From judgment accordingly entered, the plaintiff appeals.

Otto Dorner and Wm. J. Morgan, both of Milwaukee (Theodore Kronshage, Jr., of Milwaukee, of counsel), for appellant.

Gold & McCann, of Milwaukee, for respondents.

FAIRCHILD, Justice.

Respondent made the agreement with appellant set out in the statement of facts. Under the stipulations of that agreement, an easement over respondent's land was provided for, and a side track bringing switching facilities to the boundary of appellant's land was to be constructed by respondent. The appellant is entitled to specific performance of the contract on respondent's part: (1) If the time has arrived for the performance of this covenant; that is, if the clause “at such time as it (respondent) will begin building operations” can fairly be construed to refer to the time of building the side track, and not to constitute a condition that the side track will be built only if the respondent determines to improve its property; (2) if the contract is not too indefinite and uncertain, with respect to location of the side track, to be capable of specific performance; (3) unless the inconvenience and expense to respondent is so great compared to the benefits to be derived by appellant from the building of the track as to make it inequitable to compel specific performance.

As to time of performance, the trial court was persuaded that following literally the language of the contract, respondent was not bound to furnish the side track until after the commencement of building operations by it upon the land secured through appellant, and that “neither the actual construction nor the preliminary planning and location of the side track could possibly be commenced until the defendant had determined the location of its own proposed new buildings which the side track was clearly intended mutually to serve along with the building of the plaintiff.” The time for performance of the covenant to build a side track is expressed in the contract as being “at such time as it (respondent) will begin building...