Beranek v. Gohr

• Decision Date: 04 December 1951
• Citation: 50 N.W.2d 459,260 Wis. 282
• Parties: BERANEK et al. v. GOHR.
• Court: Wisconsin Supreme Court

Page 459

50 N.W.2d 459

260 Wis. 282

BERANEK et al. v. GOHR.

Supreme Court of Wisconsin.

Dec. 4, 1951.

Action by Albert Beranek and Ernst Gohr, plaintiffs, against Carl Gohr, defendant to quiet title to an eighty acre farm in Barron county and for an accounting of the rents and profits. The defendant, by counterclaim, alleged ownership of the real estate by virtue of an oral contract with the plaintiff Ernst Gohr, under which he took possession thereof and claimed partial performance of the contract. Judgment was entered on April 16, 1951, dismissing the complaint of the plaintiffs and quieting, establishing and confirming title in the defendant. Plaintiffs appealed from said judgment.

Ernst Gohr purchased the premises from his parents in 1918 and received a warranty deed from them. On August 28, 1933, said Ernst Gohr and his wife, now deceased, executed a promissory note to his parents in the sum of $4,000, secured by a real estate mortgage on said land. The defendant became the owner of said promissory note and mortgage under the will of Ottilia Gohr, deceased, who died in the fall of 1940. When her will was read to the heirs, Ernst Gohr claimed he had made payments on the note which were not endorsed thereon, and for which he had no receipts. He stated that he would give up the farm rather than pay $4,000 in satisfaction of the mortgage. Both Ernst and Carl Gohr agree that they met shortly thereafter and made an agreement; that Ernst moved from the farm in May, 1941; that Carl took possession thereof and thereafter rented the same, and paid the taxes and insurance thereon, but he did not move to nor live upon the farm. Ernst claimed the agreement was that Carl should take possession of the farm, rent the same, and apply the net rent upon the note until it was paid. Carl claimed the agreement was that Ernst would convey the farm to him in consideration of a satisfaction of the mortgage and upon condition that Ernst take the drinking cups, water tank, and pipes from the barn, which he did. Ernst never delivered the deed to Carl nor did Carl ever satisfy the mortgage or deliver the note to Ernst.

In June, 1950, Carl Gohr's attorney wrote to Ernst Gohr, suggesting that he execute a quit claim deed to the premises. Instead of complying with the request Ernst conveyed the land to Albert Beranek, one of the plaintiffs, and shrtly thereafter this action was commenced. The defendant, by way of counterclaim, asserted that he was the owner of the premises by virtue of a deed from Ernst Gohr and wife, which he claimed was delivered to his attorney. Upon the trial it developed that no such deed had been delivered either to defendant or his attorney, and the counterclaim was amended to plead the oral agreement and partial performance thereof. The trial court found that the agreement was as testified to by the defendant, that the defendant took possession by virtue of the contract, that there was sufficient performance thereunder to take the contract out of the statute of frauds and that defendant was entitled to specific performance of the contract, as Albert Beranek was not an innocent purchaser for value.

S. P. Rigler, Rice Lake, for appellants.

Francis R. Parks, Rice Lake, Terence N. Hickey, Menomonie, of counsel, for respondent.

BROADFOOT, Justice.

Upon appeal the plaintiffs claim that the trial court erred in finding that an oral agreement was entered into by Ernst Gohr and Carl Gohr, in permitting the amendment to the counterclaim, and in finding that there was sufficient performance of the oral contract to overcome the statute of frauds, which was asserted as a defense.

As to the first claim of error, it is apparent that there was an oral agreement. There was a sharp dispute in the testimony as to the terms of the agreement, and the terms thereof were determined by the trial court from the evidence. It was a judge of the credibility of the witnesses and its finding thereon is not against the great weight or clear preponderance of the evidence.

The motion to amend the counterclaim was made before the close of the trial. The plaintiffs did not claim surprise nor did they offer any additional testimony as to the new issue, and under the liberal rules prevailing in this state for the amendment of pleadings the action of the trial court was proper.

As to the third claim of error, the contention of the plaintiffs must be sustained. The record does not disclose a sufficient performance of the oral contract to overcome the defense of the Statute of Frauds. St.1949, § 240.08. The general rule as to the requisites of part performance of an oral contract is stated in 49 Am.Jur. p. 732, sec. 427, as follows:

'Since the doctrine of part performance is based upon the prevention of fraud, and its application to permit specific performance of an oral contract is dependent upon the existence of the general prerequisites to equitable relief, nothing can be regarded as a part performance to take a verbal contract out of the operation of the statute which does not place...