Durkin v. MacHesky

• Citation: 188 N.W. 97,177 Wis. 595
• Parties: DURKIN v. MACHESKY.
• Decision Date: 09 May 1922
• Court: United States State Supreme Court of Wisconsin

177 Wis. 595

188 N.W. 97

DURKIN

v.MACHESKY.^a1

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by D. W. Durkin against Anton Machesky. From judgment for defendant, plaintiff appeals. Reversed and remanded, with directions to award judgment for plaintiff.

Action to recover money had and received by defendant for the use of plaintiff. The complaint alleged that the defendant was indebted to plaintiff in the sum of $1,000 for money had and received to the use of plaintiff prior to January 22, 1919; that the defendant, though many times requested, had refused to pay the plaintiff the above sum. Defendant denied the allegations of the complaint. The case was tried in civil court, and resulted in a judgment in favor of plaintiff for $1,000 and costs. Upon trial in the circuit court this judgment was reversed.

In the early part of July, 1918, plaintiff negotiated with defendant for the purchase of certain property on Thirty-Fourth street in the city of Milwaukee, which belonged to defendant's wife. Plaintiff delivered an automobile to defendant, and offered it and $4,800 in cash for the property in question. This offer was accepted by defendant's wife, although plaintiff testified he had no knowledge of the fact. On July 31, 1918, plaintiff made a bill of sale of the car to the defendant, which stated that plaintiff had received $700 in full payment for the car. The contract for the purchase of this property was not consummated.

On October 10, 1918, plaintiff gave defendant a check for $100, on which was the following indorsement:

“Southwest corner 28th and Meinecke, purchase price, $1,800, deposit $100, balance $1,700, to be closed in October 17, 1918.”

The check was indorsed and cashed by Machesky. On January 15, 1919, defendant's attorneys notified plaintiff by letter containing a description of the land that the time for performing the contract was past; that defendant was ready to execute a deed upon payment of the balance of the cash; and that defendant was going to hold plaintiff liable for all damages resulting from his failure to complete the contract. On January 20th, and again on January 22d, plaintiff gave defendant a check for $100. On April 11, 1919, defendant's attorneys notified plaintiff by letter that, unless the balance of the cash payment was made and a mortgage executed within five days, the defendant would proceed to seek relief in law or equity to declare forfeited the amounts paid by plaintiff. Nothing further was paid. In July, 1919, defendant sold the premises to one Koller.

It appears that the contract for the purchase of the property on Thirty-Fourth street was rescinded by mutual consent. Defendant testified that plaintiff gave up the automobile in consideration of his release from the contract. Plaintiff testified that the value of the car was $700, and that this amount was to be allowed plaintiff on the purchase price of a piece of property to be ascertained later. As to the second contract, he testified that the purchase price was $2,500; that he received $700 credit; that he was to pay $300 in cash, and give a mortgage for the balance, $1,500 payable in six months; that defendant agreed to give him an abstract, deed, and tax receipts for the last year, but failed to do so, and failed to submit a mortgage for $1,500, although at a later date defendant offered to take a further cash payment of $300 and accept a mortgage for $1,200.

Defendant testified that the value of the lots on Twenty-Eighth street was $2,500; that he sold them for $1,800 because of financial difficulties; that the agreement was that plaintiff should pay the entire amount in cash, and that no notes were mentioned; that plaintiff was given the abstracts and tax certificates; that he endeavored to induce plaintiff to close the deal by offering to take a mortgage; that plaintiff said he would either pay the entire balance or else a part, and give a mortgage due in 30 days; that he tendered a deed to plaintiff; and that plaintiff refused to pay cash or execute a mortgage.Charles E. Hammersley, of Milwaukee (John S. Barry, of Milwaukee, of counsel), for appellant.

Lenicheck, Boesel & Wickem, of Milwaukee (Arthur E. Lenicheck, of Milwaukee, of counsel), for respondent.

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

[1] The statute providing for the practice in civil court prescribes that in actions of this character the practice, pleadings, trials, judgments, and proceedings thereafter shall be goverened by the provisions of law relating to circuit courts and proceedings therein. Section 14, subd. 2, c. 549, Laws 1909, as amended by section 6, c. 425, Laws 1911.

Under this law and section 2863, Stats., it was plainly the duty of the civil court to make findings as to each issuable fact. This rule was disregarded, and, as was said by the circuit judge, the findings “are so general and improper in their form as to be of little significance on this appeal.” Such general findings are not within the rule that the decision of a trial court respecting disputed matters of fact will not be disturbed on appeal unless against the clear preponderance of the evidence. Chippewa B. Co. v. City of Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931;Weinhagen v. Hayes, 174 Wis. 233, 178 N. W. 780, 785.

The statute regulating appeals from the civil court does not seem to require the circuit court to make findings of fact, and in this case none were filed, although there was a careful opinion. This makes it necessary for us to consider the whole evidence and draw our conclusions as if no findings had been filed.

[2] There was a direct conflict in the testimony as to the agreement when the first contract was rescinded, although both parties were agreed that it was rescinded by mutual consent. Defendant claimed that the automobile was forfeited by plaintiff because he desired to be relieved from the contract, and defendant relied on the receipt to support his contention. Since the writing was a mere receipt, and not a contract, it was open to explanation, and plaintiff's testimony that it was the real agreement that he was to be given credit for the value of the car in another deal seems the more reasonable, and as both the trial and circuit judge came to this conclusion, we have no difficulty in holding that this was the understanding between the parties.

[3] It was argued by defendant's counsel that the negotiations as to the second transaction ripened into a valid contract, evidenced by the check given by plaintiff with the indorsement. It is claimed that the indorsement described the land with sufficient certainty to meet the requirements of the statute of frauds.

But we are satisfied that the description was too vague and uncertain to constitute a binding contract. It does not appear whether one lot or more was intended. Counsel for defendant cite cases where parol evidence has been received to identify the...