Conrad Milwaukee Corp. v. Wasilewski

• Decision Date: 12 April 1966
• Parties: CONRAD MILWAUKEE CORPORATION, a Wisconsin corporation and general partner of Bay View Terrace Company, a Limited partnership, Plaintiff-Appellant, v. Edwin M. WASILEWSKI, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 240

141 N.W.2d 240

30 Wis.2d 481

CONRAD MILWAUKEE CORPORATION, a Wisconsin corporation and general partner of Bay View Terrace Company, a Limited partnership, Plaintiff-Appellant, v. Edwin M. WASILEWSKI, Defendant-Respondent.

Supreme Court of Wisconsin.

April 12, 1966.

Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Roger C. Minahan, Richard P. Buellesbach and Richard C. Ninneman, Milwaukee, of counsel, for appellant.

John B. Nichols, Milwaukee, Thomas J. Bergen, Milwaukee, of counsel, for respondent.

HALLOWS, Justice.

The plaintiff contends time is of the essence in respect to the expiration date of the option to purchase contained in the lease and such option expired before the defendant attempted to exercise it. It is further contended the option is expressed in unambiguous language and the expiration date cannot be modified by other documents or by oral testimony because of the parol-evidence rule and because such evidence would modify an essential term of an agreement required to be in writing by the statute of frauds.

The defendant argues time is not of the essence of the option because it is a part of the lease and thus the 12-day delay was not important; and alternatively, when the option to purchase is read with the other parts of the lease and with the application for the lease, it must be construed as providing a period of 90-days' occupancy as a condition precedent to the expiration of the option. On this latter point the defendant's position is twofold: (1) That construing all these written documents together is not a violation of the parol-evidence rule because they constitute the agreement of the parties and (2) if the option alone is the agreement, it is ambiguous and the other documents and oral evidence are needed and are admissible to clarify it. Under these theories, the defendant contends there is no violation of the statute of frauds, sec. 240.08, Stats., or of the parol-evidence rule. While somewhat inconsistent with his answer, the defendant also argues he is not offering any oral evidence as distinguished from the documents to clarify the ambiguity. As we read the trial court's opinion, it agreed with the defendant's theory that oral testimony was admissible to show the intention of the parties in respect to the option.

First, we think an offer to ripen into a contract must be accepted within the time limit expressed in the offer and it makes no difference whether or not this is expressly so stated or whether the offer is a part of a lease or other written document or stands alone as a 'pure offer.' This proposition of law is no longer open to doubt or debate. We held in Megal v. Kohlhardt (1960), 11 Wis.2d 70, 103 N.W.2d 892, that time was of the essence in an option and the acceptance was to be made within the time limit prescribed; otherwise, the rights of the optionee expire without notice or declaration of forfeiture. See Mueller v. Nortmann (1903), 116 Wis. 468, 93 N.W. 538; 55 Am.Jur., Vendor and Purchaser, p. 509, sec. 40; 51 C.J.S. Landlord and Tenant § 84 b, p. 643. The attempted distinction made by the defendant that Megal does not control this case because it involved the pure-offer option is without merit. Hafemann v. Korinek (1954), 266 Wis. 450, 63 N.W.2d 835; 3 Thompson, Real Property, p. 578, sec. 1153. Williston on Contracts (3rd ed.), p. 211, sec. 853, states that time is of the essence of an option and this is true with a pure-offer option or whether embodied in another contract.

In his second argument the defendant contends the option, lease and the application for the lease must all be read together as contemporaneous documents to ascertain the intention of the parties. The lease is dated August 17, 1964, and provides for a term of two years but its commencement date is left a blank. Typewritten on the first page of the lease is the option. There is nothing in the lease other than its date, term, rental, unit-ownership paragraph and the omission of a commencement date which has any bearing on the option except the description of apartment 'Unit No. 17 2 br (F).' The application states the rent is $280 a month which is to start the first of the month and the tenant 'will move in March 1st, 1965,' but nowhere does the plaintiff agree that occupancy will be delivered on March 1st. This is understandable since the building was under construction.

We think the option is embodied in the lease sufficiently to be a part thereof and it may be construed in the light of the other terms of the lease. However, the application is not a part of the option even though it is a contemporaneous document. We find no intention of the parties that the application and option constitute the agreement of the parties because there is no express internal connection or reference of incorporation between the contemporaneous documents. Martell v. National Guardian Life Ins. Co. (1965), 27 Wis.2d 164, 133 N.W.2d 721.

It is further contended by the defendant that the option is ambiguous when read in its entirety because it provides for credit on the purchase price of the monthly rental payments paid prior to exercising the option and this can only mean he was entitled to more than one month's occupancy. Since the lease is silent as to the date of occupancy, resort must be had to the application to clarify this ambiguity of the option. The defendant then reasons that by reading the application together with the lease and option, it is plain that the parties intended the defendant to have a three-months' period of occupancy to live in the apartment before exercising his option to...