Bast v. Sproll

• Decision Date: 14 March 1922
• Citation: 187 N.W. 223,176 Wis. 371
• Parties: BAST v. SPROLL ET AL.
• Court: Wisconsin Supreme Court

176 Wis. 371

187 N.W. 223

BAST

v.SPROLL ET AL.

Supreme Court of Wisconsin.

March 14, 1922.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by E. J. Bast against John Sproll and another. From an order sustaining defendant's demurrer to the complaint, the plaintiff appeals. Affirmed.

The complaint alleged the making and signing of a written contract by the parties on May 11, 1920. It was to the effect that, on the condition that one Mr. Loessel should buy defendants' farm or that it should be sold for $13,500 or more, the defendants would buy the plaintiff's “residence and lots in St. Nazianz, Wisconsin” (there being no further or other description thereof), for $7,000. “$5,000 cash to be paid by the 15th of June, or the time the place is bought, should it be a short time after that. The balance, $2,000, will include interest at the rate of interest which is paid us on the balance on the farm.”

There were other recitals as to what was included and excluded in the agreement, but not material here.

It also provided that defendants were binding the contract by giving a $50 Liberty Bond to the plaintiff, and that if the contract did not result in a sale as therein stated, then the plaintiff was to return the Liberty Bond, and in case of a sale he was to return the Liberty Bond when the $5,000 was paid. It also recited:

“In case of sale of our farm as stated above this paper will constitute a note for the above amount, interest at the same rate as paid on the farm.”

Further provisions of the written contract are not material here.

The complaint alleged that within the time limited by the contract the defendants did sell their farm to Mr. Loessel; that thereafter plaintiff tendered a deed of his residence and lots in the village of St. Nazianz and offered to and was able and willing to comply with all the conditions of the contract on his part required and delivers into court the deed of his residence and lots, but that the defendants failed and refused to carry out the contract on their part. The prayer was that the defendants be directed to carry out their part of the agreement and for judgment for $7,000.

From the order of the trial court sustaining defendants' demurrer to such complaint, plaintiff has appealed.Hougen, Brady & Meyer, of Manitowoc, for appellant.

Healy & Joyce, of Manitowoc, for respondents.

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

Upon this appeal appellant plaintiff presents no question other than his assertion of a right to recover the sum of $7,000 mentioned in the agreement set forth in the complaint as though such were a promissory note by defendants for that amount, and states in his brief that this is not an action for specific performance, but for money as upon a completed sale.

He contends that the clause in the contract, “in case of sale of our farm as stated above this paper will constitute a note for the above amount, $7,000, until paid, interest at the same rate as paid on the farm,” contains all the essential elements of a promissory note and made a binding obligation on the defendants to pay that amount; the condition precedent of a sale of the farm having been performed.

This quoted sentence from the contract, however, expressly refers to other portions of the written contract, and the whole thereof being pleaded by plaintiff, the entire contract must be considered in determining the rights and liabilities of the parties.

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