Edwardsen v. Berntzon
| Citation | 152 N.W. 832,161 Wis. 180 |
| Parties | EDWARDSEN ET AL. v. BERNTZON. |
| Decision Date | 01 June 1915 |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.
Action by Stalle Berntzon against Charles Edwardsen and another. From an order granting a preliminary injunction, defendants appeal. Affirmed.
Action to restrain commission of waste. The complaint was to this effect:
April 12, 1913, plaintiff contracted in writing to sell a particular farm and some live stock thereon for $4,500, of which $500 was paid down, the balance was agreed to be paid in specified installments, and a promissory note conditioned accordingly was given. It was stipulated in the land contract that the vendee should not cut or remove any timber from the land in advance of at least $1,500 of the purchase price of the property being paid. In addition to retention of title to the land as security for the deferred payments, plaintiff took a chattel mortgage on the live stock and duly filed the same. Prior to May 8, 1914, plaintiff received payments on the note to the extent of $423.21. On that day, under the terms of the chattel mortgage and without consent of defendants, he caused the mortgaged chattels to be seized and sold. The net proceeds thereof was $434.54. He failed to comply with section 2316, Stats. 1913. December 1, 1914, defendants, without having paid $1,500 on the purchase price of the farm and live stock began cutting timber from the land with the intention of removing the same and refused to desist therefrom, though plaintiff demanded that they do so. They are irresponsible, and if permitted to breach the contract by committing waste upon the land, plaintiff will be irremediably damaged. Appropriate permanent relief was demanded and an interim injunction asked for.
Defendants answered admitting the claim as to their cutting timber with the intention to remove the same from the land and without having paid in money the $1,500, as provided in the land contract, and insisted upon their having a right to do so because their purpose was to clear the land for cultivation, and because the indebtedness covered by the chattel mortgage and land contract was extinguished by failure of plaintiff to comply with the statute as to enforcing chattel mortgages.
On the pleadings and properly exhibiting the same as aforesaid the court granted the plaintiff the protection of a preliminary injunction restraining defendants pending the action from cutting and removing timber from the land. They appealed.
*832Brown, Pradt & Genrich, of Wausau, for appellants.
Kreutzer, Bird, Rosenberry & Okoneski, of Wausau, for respondent.
(after stating the facts as above).
In this case, though the idea prevails that the judgment should be affirmed, there is such...
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Stierle v. Rohmeyer
...relief from the penalty was not to ignore it, but to enforce it, and thereby secure its repeal by the Legislature. Berntzon v. Edwardsen, 161 Wis. 180, 152 N. W. 832. This case is not mentioned in the opinion in the American Hardware Co. Case, supra, although it was cited in the brief of re......