Foster v. Lowe

• Decision Date: 19 February 1907
• Citation: 110 N.W. 829,131 Wis. 54
• Parties: FOSTER v. LOWE.
• Court: Wisconsin Supreme Court

131 Wis. 54

110 N.W. 829

FOSTER

v.LOWE.

Supreme Court of Wisconsin.

Feb. 19, 1907.

Appeal from Circuit Court, Clark County; E. W. Helms, Judge.

Action by N. C. Foster against Thomas Lowe. From a judgment for plaintiff, defendant appeals. Affirmed.

Action at law upon two ordinary land contracts, dated August 18, 1898, in each of which the defendant promised to pay to one Conrad Krumrey the sum of $125, at specified dates, up to June 1, 1899, and of which he had paid on each contract the sum of $37.50. Krumrey agreed in the same instruments that, after said sum of $125 on each contract should be fully paid, he would, on demand, thereafter, cause to be executed and delivered a warranty deed of the premises described, except for the taxes, which were agreed to be paid by the defendant. The contracts further provided, “If the second party [defendant] shall fail to make any of the payments above specified, at the time and in the manner above specified, * * * this agreement shall be thenceforth utterly void and all payments thereon forfeited to the first party, subject to be revived and renewed in writing at the option of the first party.” The contracts were under seal and acknowledged. These contracts were both assigned to the plaintiff by writing indorsed thereon on August 25, 1898, for a valuable consideration. The defendant wholly failed to pay any further sums as promised in said contracts, and no written notice had ever been given him of the exercise of election by either Krumrey or plaintiff that the contract should be revived or renewed. Defendant failed to pay the taxes for 1899, and all subsequent years, and, the property being sold for taxes in May, 1900, a tax deed had been issued to one Schuster in May, 1903, the regularity of which was assailed but not decided. In October, 1903, Krumrey made a quitclaim deed of the contracted premises to said Schuster. The principal defense alleged was that the land contracts did not contain the whole contract between the parties; that a scheme had been entered into in June, 1898, to induce a certain manufacturing partnership, Kerr Bros. & Co., then located in Ohio, to come to Neillsville and establish a business in a then vacant factory, and that they had entered into contract with certain citizens of Neillsville, who were a self-constituted committee, whereby Kerr Bros. & Co. stipulated that, in consideration of certain aid from the citizens of Neillsville, they would establish a business, employing generally at least 25 men, would equip the factory with machinery, and would persist in said business for five years, with some other agreements. Defendant was solicited to purchase these lots, which were of actual sale value of only about $10 apiece, as a method of contributing to the aid or bonus which was to be given to Kerr Bros. & Co., such solicitation being by citizens of Neillsville, who were desirous, for the public welfare, of securing this industry. Krumrey held title to the lots merely as trustee for Kerr Bros. & Co. The claim was that the written contract made by Kerr Bros. & Co. with the citizens' committee entered into, and formed a part of, the contract for the purchase of these lots, and, they having breached this contract, defendant claimed to have been discharged. The court found that the two land contracts sued upon were not shown to have been connected with or dependent upon the contracts made by Kerr Bros. & Co.; indeed, that defendant did not know either the existence or the contents of said Kerr Bros. & Co. contracts; that he was induced to make the land contracts by representations of fellow citizens as to the advantages that would accrue to him and to the city of Neillsville from the location of the new industry there, and that Kerr Bros. & Co. had made some kind of a contract with somebody that they would there establish and maintain the business. Accordingly, the court held that the written land contracts must be deemed to embody the whole contract between Krumrey and the defendant, and that plaintiff was entitled to recover the amounts remaining due thereon, and rendered judgment in plaintiff's favor therefor, from which the defendant appeals.Grow & Campman and J. R. & C. R. Sturdevant, for appellant.

Marsh & Schoengarth, for respondent.

DODGE, J. (after stating the facts).

The land contracts involved are bilateral, and, upon their face, purport to set out the mutual undertakings of the two parties. There is, therefore, a presumption that they do so, and that, if the minds of the parties had in fact met upon any other elements, conditions, or propositions, all such had been abandoned, except as to those things which were expressly defined in the writing which, by their signatures, they had declared to be a correct and complete expression of their final contract. Conant v....