Clark v. Burr

• Decision Date: 23 May 1893
• Citation: 85 Wis. 649,55 N.W. 401
• Parties: CLARK v. BURR. BURR v. CLARK.
• Court: Wisconsin Supreme Court

85 Wis. 649

55 N.W. 401

CLARK

v.BURR.

BURR

v.CLARK.

Supreme Court of Wisconsin.

May 23, 1893.

Appeal from circuit court, Portage county; Charles M. Webb, Judge.

Action by Owen Clark against Emmons Burr. From a judgment for plaintiff, defendant appeals. Reversed. Action by Emmons Burr against Owen Clark. From a judgment for defendant, plaintiff appeals. Affirmed.Cate, Jones & Sanborn, (Gabe Bouck, of counsel,) for appellant.

James O. Raymond and Edward S. Bragg, for respondent.

ORTON, J.

On the 3d day of January, 1891, the respondent signed, sealed, and delivered to the appellant the following agreement or option: “Witnesseth, that for and in consideration of the sum of one dollar paid by the said second party to said first party, receipt whereof is hereby acknowledged, said first party does hereby agree to sell, transfer, and convey to said second party, by a good and sufficient deed of warranty, free and clear of all liens and incumbrances of any nature whatever, at any time within nine months from this date, upon the payment to said first party by said second party of the sum of twenty-three thousand and five hundred dollars ($23,500) cash, the following real estate situated and being in the city of Stevens Point, county of Portage, and state of Wisconsin, to wit: [Here follows a long description of the property by metes and bounds, lying on the Wisconsin river, and a dam across the river, with its appurtenances, rights, and privileges, the piers and booms in the river, the said mill thereunto belonging, and tools, machinery, rights, and franchises thereunto belonging, with reservations of the property belonging to the Jackson Milling Company, known as the “North Star Mills,” and the right of way of a railroad company.] It is hereby agreed and understood that said second party shall have the exclusive right to purchase the above-described property upon the terms hereinbefore mentioned, at any time within nine months from this date. [Signed] Owen Clark. [Seal.]” It is alleged in the complaint that the appellant made a written acceptance of this option or proposal, and unconditionally, on the 7th day of July, 1891, and that on the 3d day of September, 1891, the respondent (the plaintiff) tendered and offered to the appellant (the defendant) a warranty deed of the premises, in accordance with the terms of the aforesaid contract, with the usual covenants as to title, possession, and against incumbrances, duly executed, witnessed, and acknowledged by the plaintiff and his wife, and at the same time demanded the said sum of $23,500, the consideration therefor, and the defendant refused to pay the same. The answer of the defendant states substantially the following facts: (1) There was another action pending in the same court between the same parties, and for the same cause of action. (2) The option or proposal was made as alleged. (3) There was a sawmill on the premises, with all the necessary tools and machinery, of the value of $12,000, when said option was given, and the same were insured for the sum of $9,500. (4) On the 25th day of May, 1891, the said mill, tools, and machinery were destroyed by fire while the same were still insured, and the plaintiff received said insurance money. (5) On the same day the defendant accepted the said option or proposal, and as a part of the same transaction he served upon the plaintiff a demand in writing for the deed, according to said offer, and for said insurance money in lieu of the part of said property so destroyed by fire, which he had received, and claimed that said insurance money should be credited upon the said $23,500, or deducted therefrom, and that he was ready and willing to pay the said consideration, less said $9,500, and is still ready; and he then and there tendered the same to the defendant, and the defendant refused to receive the same, and refused to deed the premises on said condition, but offered to deed the premises, as they then were, to the defendant, on his payment in full of the said $23,500, and the defendant refused to accept said offer. The defendant demands that the plaintiff convey said premises to him upon the payment of said consideration, less said insurance money, or upon the payment of the whole of said consideration, and the plaintiff be required to pay over to him said insurance money. The matters of this answer were set up in the other action pending in the complaint by the defendant against the plaintiff, and the issues and findings are the same in both actions, and the two appeals were heard together. In the other action the defendant here, as the plaintiff, demands the specific performance of the contract, as modified by said condition of acceptance, and in this action the plaintiff demands judgment for the whole of $23.500 on a tender of the deed of the premises as they now are, and obtained judgment accordingly. In the other action the court rendered judgment against the plaintiff. Among other findings of the above facts the circuit court found “that all of said transactions were had at one and the same interview between said parties on the 9th day of July.” These transactions are found...