Droppers v. Hand

• Decision Date: 10 May 1932
• Citation: 242 N.W. 483,208 Wis. 681
• Parties: DROPPERS ET UX. v. HAND.
• Court: Wisconsin Supreme Court

208 Wis. 681

242 N.W. 483

DROPPERS ET UX.

v.HAND.

Supreme Court of Wisconsin.

May 10, 1932.

Appeal from a judgment of the Circuit Court for Milwaukee County; John C. Kleczka, Circuit Judge.

Suit by Herbert J. Droppers and wife against Winifred B. Hand. From a judgment for plaintiffs, defendant appeals.--[By Editorial Staff.]

Reversed and remanded with directions.

Action for specific performance, commenced on November 18, 1929, by the vendors under a written contract for the sale of real estate. In October, 1929, defendant was considering the purchase of a house and lot. She consulted with Miss Wilkie, an employee of the Remeeus Real Estate Agency. The plaintiff Droppers and wife had employed Remeeus to sell the property in question on commission. The property had been in the hands of Remeeus since September, 1927. Miss Wilkie showed the Droppers property to the defendant, and on October 15, 1929, drew up a contract for the sale of this property to defendant, which defendant signed. By the terms of the contract defendant agreed to purchase the property for the sum of $12,000, cash, upon delivery by the Droppers of a warranty deed and complete abstract brought down to date showing marketable title free and clear of all incumbrances, subject to deed restrictions and ordinances. The contract provided: “This deal to be closed in the office of Remeeus Real Estate on or before November 15, 1929, at which time possession will be given.” Miss Wilkie presented the offer to Droppers on the same day that it was signed. Droppers declined to sell at the price specified in the contract, but did agree that he would sell for $12,500, and that, in return for the extra $500, he would leave upon the place for the defendant certain personal property, including the garden tools and hose, the mangle, the stair carpet, and hall runner, etc. The defendant authorized Miss Wilkie to meet the price of $12,500, and to make the changes in the contract to conform to the counter offer of plaintiffs. Miss Wilkie changed the contract by writing $12,500 where $12,000 was written in figures in the contract, and changing the balance from $11,500 to $12,000, it being understood that $500 was to be paid down at the time of this contract. She put a notation on the margin, “Changes as per telephone conversation with Winifred Hand. A. E. W.” She did not insert in the contract the provisions for leaving the personal property on the premises. Thereafter Droppers signed the contract and received the $500 down payment.

On the morning of the 15th of November, the parties met in the office of the real estate agent for the purpose of closing the deal. Defendant had with her sufficient funds to fulfill her contract. She also had with her the president of the Park Savings Bank, with whom she had arranged for a first mortgage loan on the premises. The premises were at the time incumbered by a mortgage of $4,000. The mortgagee was a resident of California, and plaintiffs had proceeded upon the representations of one Martin that he held a power of attorney to release and satisfy the mortgage. At this meeting, however, it was discovered that Martin was mistaken, and that the only power he had was an authority to have access to the safety deposit box of the mortgagee. Upon discovery of the fact that the satisfaction of the mortgage was not immediately forthcoming, the president of the bank withdrew and declined to have anything further to do with the transaction. The sellers then telegraphed the mortgagee in California and received on the same day a telegram authorizing Martin to act for her. Plaintiffs tendered to defendant a warranty deed signed by the sellers, and the surrender of the mortgage and note, and in defendant's presence there was delivered to Martin a check sufficient to pay defendant's mortgage. The telegraphic authority to the agent was exhibited to the defendant. Tax receipts for 1928, abstract, and insurance policies were tendered. The defendant declined to close the transaction, upon the ground that the bank now refused to loan the $5,000 needed to complete the deal, whereupon the sellers offered to take back a purchase-money mortgage in the sum of either $5,000 or $6,000. Defendant refused to accept. The sellers offered to allow $4,000 of the purchase price to be held in escrow until the satisfaction of the mortgage should be received from California. This offer was refused. The satisfaction, which could not be signed on the 15th, was on that day sent to California for signature by the mortgagee, and signed and acknowledged on the 19th, and returned and recorded on the 21st day of November, 1929. On November 16th, the defendant signed and served notice rescinding and disaffirming her contract and demanding the return of her down payment. The court filed findings of fact and conclusions of law, and ordered judgment for the plaintiffs. Defendant appeals.Wheeler & Witte, of Milwaukee, for appellant.

Upham, Black, Russell & Richardson, of Milwaukee (Perry J. Stearns and Fraley N. Weidner, both of Milwaukee, of counsel), for respondents.

WICKHEM, J.

Defendant's first contention is that plaintiffs are not entitled to the relief of specific performance...