Doctor v. Hellberg

• Decision Date: 16 March 1886
• Citation: 27 N.W. 176,65 Wis. 415
• Parties: DOCTOR AND ANOTHER v. HELLBERG.
• Court: Wisconsin Supreme Court

65 Wis. 415

27 N.W. 176

DOCTOR AND ANOTHER

v.HELLBERG.

Supreme Court of Wisconsin.

Filed March 16, 1886.

Appeal from county court, Milwaukee county.

The complaint alleges, in effect, that July 14, 1885, the defendant, a widow, offered to sell to the plaintiffs a farm owned and occupied by her, in section 24, in township 7, range 21, being in the town of Wauwatosa, which she represented to contain 49 acres, with the buildings and improvements thereon, with the crops, consisting in part of hay and oats, and personal property, of which a partial list was two horses, two buggies, wagon, two cows, reaper, and other farm machinery and tools, for $20,300, to be paid as hereinafter stated; that on the same day the plaintiffs accepted said offer, and then paid the defendant thereon $100 in cash, and took from her a receipt and agreement in writing, of which the following is a copy:

“Received of Messrs. Jacob Katz and Adolph Doctor the sum of one hundred dollars as part purchase money for 49 acres of land, with buildings and improvemends thereon, situated in the town of Wauwatosa, state of Wisconsin; said described property being the same now occupied by me. Whole amount of said purchase money is twenty thousand and three hundred dollars. At the delivery of a warranted, perfect deed, two thousand dollars to be paid cash, the balance of eighteen thousand three hundred dls. payable in ten years from date of deed, with 4 1/2 per cent. (four and one-half per cent.) interest. Said property situated in town of Wauwatosa, and at present occupied by me, and I promise to deliver deed in six weeks. Above amount included also the two horses, wagons, and all the former machinery and tools, etc., etc.

+-------------------------------------------+
                ¦Dated July   14, 1885.  ¦CAROLINE HELLBERG.¦
                +------------------------+------------------¦
                ¦Witness: LUCY TOOLE.    ¦                  ¦
                +------------------------+------------------¦
                ¦ANDREW SCHNEIDER.       ¦                  ¦
                +------------------------+------------------¦
                ¦Recorded July 14, 1885.”¦                  ¦
                +-------------------------------------------+
                

--That about 10 days thereafter the plaintiffs learned for the first time that said farm did not in fact contain 49 acres, but less than 36 acres, being only about 32 1/2 acres; that August 13, 1885, the plaintiffs delivered to the defendant a notice to the effect, requesting her to furnish them the legal description of the 49 acres mentioned in the receipt and agreement, and offering, when furnished, to cause a deed to be drawn of the same in accordance with the terms of the receipt, at their own expense, by any competent person she might select, and upon the delivery to them of such deed, and the personal property described in the receipt, to pay her the further sum of $1,900, and to execute and deliver to her a mortgage upon such 49 acres for $18,300, as stated in the agreement in writing; that if the farm contain less than 49 acres of land, then the plaintiffs would pay her therefor such proportion of the $20,300 as the number of acres actually contained therein bears to 49 acres, according to the terms and in the manner specified in the receipt; that they insisted upon the fulfillment of the contract of sale of the property owned and occupied by the defendant mentioned in the receipt, and in case of neglect or failure would take steps to enforce it; that the defendant never furnished such legal description, but had wholly neglected and refused to furnish such description, or to show such 49 acres; that August 25, 1885, the plaintiffs tendered to the defendant, at her residence, the sum of $1,900, and then and there demanded of her to execute and deliver to them a warranted, perfect deed of the land which she actually owned and occupied, and offered then and there to execute and deliver to the defendant a mortgage upon such land as was actually owned and occupied by the defendant in said town for such sum (less the $2,000 paid and tendered) as the amount of land so actually owned and occupied by the defendant would amount to, computed at the same rate per acre as 49 acres for $20,300, and offered to have said farm surveyed, and the precise quantity of land therein ascertained, which tender, demand, and offer were then and there refused by the defendant; that the true description of the land owned and occupied by the defendant was such as is there given and only contained about 32 1/2 acres, and that the defendant owns no other land in said town; that April 25, 1885, the defendant had given to the Merchants' Exchange Bank a mortgage on a portion of the land for $1,600, with interest at 7 per cent., which was recorded on that day, and was still a subsisting lien thereon; that the plaintiffs had no remedy at law; that the plaintiffs were ready and willing to pay said $1,900 to the defendant, and upon the receipt of such deed of the land she so owned and the personal property, or accounting therefor, to give a mortgage to the defendant for what the land she actually owned would come to at $414.28 per acre, deducting therefrom said mortgage to the bank, which should be assumed by the plaintiffs. The complaint then prayed the specific performance of said receipt and agreement in writing upon the plaintiffs' paying and securing the balance of the purchase price after the abatement in the price as stated. The answer, aside from denial, alleged a tender of performance according to the contract, and an equitable counter-claim, to which the plaintiffs replied. The cause having come on for hearing, the defendant demurred ore tenis. The county court thereupon excluded all evidence under the complaint, and dismissed the same, and from the judgment entered thereon the plaintiffs bring this appeal.Flanders & Bothun, for appellant.

O. J. Fiebing and R. N. Austin, for respondent.

CASSODAY, J.

The answer and reply need not be considered, since the only questions presented upon this demurrer ore tenus arise upon the sufficiency of the complaint when liberally construed. Doud v. Wisconsin, P. & S. Ry. Co., 25 N. W. Rep. 533. The mere fact that the agreement to convey was signed by the defendant alone will not prevent specific performance if it was otherwise sufficient. The statute only required that the contract for the sale should be in writing expressing the consideration, and be subscribed by the party by whom the sale was made. Section 2304; Cheney v. Cook, 7 Wis. 413;Vilas v. Dickinson, 13 Wis. 488;Washburn v. Fletcher, 42 Wis. 169.

The agreement in writing to convey, in effect, acknowledged the receipt of the $100 as part purchase money for 49 acres of land, with buildings and improvements thereon, situated in the town of Wauwatosa, state of Wisconsin, being the same then occupied by the defendant, for which she thereby promised to deliver deed in six weeks. The agreement was to convey the land, buildings, and improvements then occupied by her in the town named. It was the land then so occupied, and the whole...