Buntrock v. Hoffman

• Decision Date: 08 July 1922
• Citation: 178 Wis. 5,189 N.W. 572
• Parties: BUNTROCK v. HOFFMAN.
• Court: Wisconsin Supreme Court

178 Wis. 5

189 N.W. 572

BUNTROCK

v.HOFFMAN.

Supreme Court of Wisconsin.

July 8, 1922.

Appeal from Circuit Court, Shawano County; C. A. Fowler, Judge.

Action by Emil Buntrock against Archie Hoffman. Judgment for plaintiff, and defendant appeals. Affirmed as modified.

This is an appeal from the judgment of the circuit court for Shawano county, decreeing specific performance in favor of the plaintiff and against the defendant. The following facts appear from the evidence, and are also substantially found by the court:

The plaintiff, being the owner of a certain farm located in section 33, township 29, range 11 east, in the town of Aniwa, Shawano county, Wis., together with certain personal property located thereon, on the 30th day of November, 1920, entered into a written agreement with the defendant of the following tenor, to wit:

“November 30, 1920.

We, the undersigned, hereby agree to except Eight Thousand Dollars for our farm in said town of Aniwa--Describe as follows--Including all Personal property excepting Household Goods--and car--and we hereby pledge ourselves to a fine of Dollars fine--Payable in a peaceable way, in case either party back out. And we agree to furnish a clear title of said described property, including personal property, free and clear from all incumbrances--Payable as follows--$100.00 down, balance when papers are satisfactory down to date.

Emil Buntrock.

Martha Buntrock.

Archie Hoffman.

Witness:

Wm. Senn.

This deal to be completed within 15 days from date.”

One D. W. Van Doren, at the date of said agreement, held a quitclaim deed of said farm from one Branan, as security for the payment of the sum of $3,500. The plaintiff was in possession of said real estate under a land contract with Branan, and at the time of the making of said contract there rested upon said real estate two mortgages, aggregating the sum of $2,500, controlled by one Detlaff, of Sheboygan, Wis. The plaintiff and his wife were uneducated and had little experience in real estate transactions, while the defendant was a wide-awake, intelligent farmer, who had considerable experience in the purchase and sale of farms and in the business incident to farm sales and transfers.

It appears that after the contract had been drafted, at the suggestion of the defendant the words “five hundred” in the agreement were stricken out, and that the provision, “This deal to be completed within 15 days from date,” was thereupon written into the contract at the foot thereof. At the time the agreement was signed, the defendant delivered to Senn, the agent of the plaintiff, a certificate of deposit for the sum of $420.52, whereupon Senn issued and delivered to the defendant the following receipt:

“November 30, 1920.

Received from Archie Hoffman four hundred and twenty 52/100 dollars, one hundred down on contract to bind same.

Wm. Senn, Agent.

If deal is not made, balance should be returned to Archie Hoffman.”

Pursuant to agreement of the parties, the plaintiff and his wife, defendant and his wife, and Branan and his wife met at the Bank of Birnamwood on December 4, 1920, with said Van Doren, and it was there agreed that defendant should pay the additional sum of $4,111.77 to said Van Doren, and that he would procure the balance of the purchase price either on the afternoon of that day, or the following morning, so that the full amount would then be paid, and that Van Doren was to prepare and have executed a quitclaim deed of said premises to said Branan, and a proper deed directly from Branan and wife to the defendant, and to use the purchase money in paying off the two mortgages upon the real estate, secure proper releases therefor, to pay the balance owing by the plaintiff to Branan on his land contract, and to pay to the plaintiff the balance for his equity in the real estate.

The condition of the title was fully discussed at said bank meeting, and it was understood and agreed that Van Doren was to procure and bring down the abstract. The deeds above referred to were thereupon prepared and duly executed and left with Van Doren for the benefit of the parties interested, and the additional sum of $4,111.77 was paid over to Van Doren, together with the sum of $320.52, which was paid by the agent Senn, and proper receipts for such payments were executed and delivered to the defendant, which receipts, among other things, recited that such payments were to be applied upon the purchase price of said property. At the same time it was agreed that the plaintiff would surrender and deliver to the defendant the real estate and personal property, and the defendant thereupon actually went into possession of said real estate and took over the personal property and retained possession thereof for a period of about 22 days. The balance of the money which the defendant agreed to furnish either on the 4th of December or the following day was not received by the defendant, nor paid to Van Doren in accordance with the agreement.

It appears further that prior to the 15th day of December the defendant regretted his bargain and attempted to withdraw from the same, claiming at one time that the land was not as represented, which claim was subsequently withdrawn, and at another time that he was unable to procure the balance of the money. On the 15th day of December, the defendant appeared at the bank and tendered the balance of the money due, and demanded a proper conveyance of the premises, together with releases of incumbrances and an abstract of title. Van Doren, however, before paying out any of the money left with him, took the precaution to await the payment of the balance of the purchase price by the defendant, realizing that, unless the full amount were paid, complications might arise in the event of the defendant's failure to comply with his agreement; and it also appears that the amount of money left with Van Doren was not sufficient to pay the outstanding incumbrances. On or about the 22d day of December, 1920, the defendant abandoned the property, both real and personal, and under a stipulation entered into between the parties it was agreed that the plaintiff should take possession of the property from that time on, without prejudice to the rights of the parties.

The trial court entered judgment in favor of the plaintiff, adjudging that the defendant pay to the Bank of Birnamwood the sum of $3,600 within 30 days after notice of the entry of judgment, and pay interest on $7,900 at the rate of 6 per cent. per annum from December 15, 1920, the total amount of the purchase price to be disbursed by said bank in satisfaction of the liens existing against the land, and that the remainder after the satisfaction of said liens be paid over to the plaintiff, and that, if said defendant shall fail to make such payment within the time specified, the premises be sold, as provided by law for sale on execution, and that the proceeds be applied to the satisfaction of said liens, and the remainder paid over to the plaintiff, and that, in the event of a deficiency on such sale, an execution issue against the defendant for the amount thereof, and that D. W. Van Doren be appointed as receiver by the court, for the purpose of paying off and procuring satisfactionsof said liens and of otherwise carrying out and executing said agreement in accordance with the provisions of said judgment.

Eberlein & Larson, of Shawano, for appellant.

P. J. Winter, of Shawano, for respondent.

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

[1] Upon the trial of the action, plaintiff's counsel moved to amend the complaint so as to include therein an allegation to the effect that the purchase price of the farm was to be used for the purpose of paying off the incumbrances upon the land, and that, by an oversight and the mutual mistake of the parties, such agreement was not included in the written document of date of November 30; the object of such amendment being to reform such agreement. Such amendment was thereupon allowed by the court, and such ruling of the court in that behalf constitutes one of the assignments of error of the defendant herein.

The evidence discloses, and the court found, that Senn, the agent, was unlearned and unskilled in the matter of drafting legal papers, and that the plaintiff and his wife are ignorant and inexperienced people. It also appears satisfactorily that the situation of the plaintiff was fully discussed at the meeting at the bank, and that the defendant was fully informed of plaintiff's financial condition. Furthermore, it was shown by the overwhelming testimony that the purchase money was to be paid to Van Doren by the defendant for the express purpose of enabling him to clear the title and to prepare the way for the final delivery of the deed and of the abstract. Van Doren represented both parties in this transaction, by mutual consent. It was thus shown, not only by what transpired at the bank, but by the negotiations had on November 30, that the agreement of the latter date did not contain the full agreement as contemplated and expressed by the parties, and that it was due to an oversight and to the mutual mistake of the parties that such agreement was deficient in that respect.

The actual facts as they existed, both on the 30th of November and the 4th of December, clearly indicate that the plaintiff had no other way and no other means with which to clear the title, excepting by the application of the moneys received out of the purchase price. The very fact that the defendant saw fit to pay down so large a portion of the purchase price before even obtaining the deed of the property is very persuasive to show that it was understood by the defendant that the purchase price was to be used for the purpose stated.

[2] In order to justify a reformation of a written contract, the evidence must be clear and convincing. Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909;Van Brunt v. Ferguson, 163 Wis. 540, 158 N. W. 295;Broadbent v. Hutter, 163...