Benson v. Cutler

• Decision Date: 18 October 1881
• Parties: BENSON, ADM'X, ETC., v. CUTLER.
• Court: Wisconsin Supreme Court

53 Wis. 107

10 N.W. 82

BENSON, ADM'X, ETC.,

v.CUTLER.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from circuit court, Waukesha county.

Finches, Lynde & Miner, for respondent.

J. V. V. Platto and W. S. Hawkins, for appellant.

COLE, C. J.

We concur with the learned circuit judge in most of the findings of fact in this case. To our minds the evidence is perfectly clear and conclusive that Benson went into possession of the premises under his contract as purchaser and made valuable improvements. There can be no doubt that the contracts were valid, and operated to secure a conveyance of the land by the defendant on the performance of their conditions by Benson. The instruments made the time of payment of the sums therein specified to be paid of the very essence of the contracts; but the circuit judge found that the defendant waived a strict performance of the contracts in this respect, and gave an unlimited day of payment to Benson in his life-time, and to the plaintiff since his decease, and there is ample testimony to support that finding. The question, then, arises, is there anything in the attending circumstances which would render it inequitable to enforce a specific performance of the contracts? for the law is well settled that a specific performance of a contract of sale rests largely in the sound discretion of the court, upon a view of all the circumstances. Williams v. Williams, 50 Wis. 311. And the learned counsel for the defendant insists that the contracts should not be enforced for the reason that it appears from the evidence that they were cancelled, and all rights under them voluntarily abandoned, and the premises surrendered, by the arrangement of November 4, 1875, so as to make it inequitable to enforce them. We have carefully considered all of the evidence relating to that transaction, including the testimony of the defendant himself,--which is of doubtful competency, and certainly should not receive the same degree of credit it would be entitled to were Benson alive to contradict it, if untrue,--and we think it does not sustain this position of counsel. We shall not go into a discussion of the evidence in detail, but merely state that in our judgmentit entirely fails to show that the contracts were at that time or at any other mutually abandoned, and the premises surrendered to the possession of the defendant. Indeed, the letters alone which were written by the defendant to Benson after that transaction, about the property, prove most conclusively that both parties supposed and treated the contracts as being still in force. Benson continued to improve the property, and the defendant aided him by looking after the work, and, in some instances, settling with mechanics, as this correspondence shows. We see nothing growing out of the delay in making payments, or in any change of circumstances, which renders it unconscientious to enforce performance. We therefore fully agree with the circuit court in the conclusion that the plaintiff will be entitled to a conveyance upon paying the amount justly and equitably due upon the contracts. But the circuit court held that the defendant was not entitled to any pay or compensation for any improvements put by him upon the property after August 15, 1877. This was doubtless upon the ground or for the reason that whatever improvements the defendant put upon the property subsequent to that time were made in bad faith and in his own wrong. There are cases which hold that where a party wrongfully retains the title and possession of property which he knows he ought to convey to another, he is denied pay for his...