Buck v. Pond

• Decision Date: 12 December 1905
• Citation: 126 Wis. 382,105 N.W. 909
• Parties: BUCK v. POND.
• Court: Wisconsin Supreme Court

126 Wis. 382

105 N.W. 909

BUCK

v.POND.

Supreme Court of Wisconsin.

Dec. 12, 1905.

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

Action by Charles E. Buck against Simeon Pond. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for the value of services performed and money expended by the plaintiff in clearing, breaking, and fencing a 40-acre tract of land belonging to the defendant. The answer of the defendant admitted the ownership of the land, and alleged that before the performance of the labor and the furnishing of materials by the plaintiff, the defendant sold the premises to the plaintiff by a valid contract of sale, which the plaintiff failed to perform. The evidence showed that the plaintiff and defendant, in October, 1902, made a bargain for the purchase of the land in question by the plaintiff of the defendant, and that the defendant delivered to the plaintiff the following written memorandum of the bargain:

“Westfield, Wisconsin, October 21st, 1902.

I agree to give a land contract to Charles E. Buck for my forty of land on Section 19, T. 17, R. 7, for $125, one hundred and twenty-five dollars, with int. when he fences and breaks at least fifteen acres and pays me $25 down, interest to commence now at six per cent. The $25.00 to be paid on or before January 1st, 1904, with interest.

Simeon Pond.”

It further appeared that the plaintiff went into possession of the land, and grubbed and broke a part thereof, paid taxes thereon for one year, and built a fence; and that, after he had broken 17 acres he offered to pay the defendant $25 with interest, and demanded a land contract, and the defendant refused to comply, and told the plaintiff he had sold the land to other parties. It further appeared that at the time of this demand the defendant had in fact deeded the land to one Blackburn, who had taken possession thereof. Upon this evidence the court directed a verdict for the plaintiff for the value of the labor performed and materials furnished, and from judgment upon the verdict the defendant appeals.Corrigan, Johnson & Mills and C. C. Murphy, for appellant.

P. G. Collip and Goggins & Brazeau, for respondent.

WINSLOW, J. (after stating the facts).

The defendant's claim is that the evidence shows that the plaintiff went into possession of the premises and performed the labor for which he sues, under a valid and enforceable contract for the sale of the land, and that hence the plaintiff's remedy is by action to enforce the contract, and not by action for the value of labor performed and materials furnished. Cameron...