H. & R. Truck Leasing Corp. v. Allen
| Citation | 131 N.W.2d 912,26 Wis.2d 158 |
| Parties | H. & R. TRUCK LEASING CORP., a Wis. corporation, Respondent, v. Myron T. ALLEN et al., Appellants. |
| Decision Date | 05 January 1965 |
| Court | Wisconsin Supreme Court |
Harvey, Weber, Gerard & Jones, Racine, for appellants.
McEvoy & Munger, Kenosha, for respondent.
Insurance Co. v. Dutcher (1977), 95 U.S. 269, 273, 24 L.Ed. 410.
Even though the written option is somewhat ambiguous, the conduct of the parties (or their counsel) in this case vigorously establishes that the parties intended to sell by the acre. During the entire negotiations there was never any discussion of a gross sales price. The parties may have individually calculated what the total expenditure or receipt would be, but they did not communicate with one another as to an overall price.
Mila Allen testified that it was her intention to sell 'for about $7,500.' However, when asked whether she conveyed that intention to the buyer, she replied, 'Well, I imagine Mr. Holderness knew.' Myron Allen was also asked whether any total price was mentioned. He responded, Well, there could have been, but I don't remember.' The buyer's representative, on the other hand, categorically and unqualifiedly denied that there was any discussion of a gross sales price. The trial court was surely entitled to accept the latter testimony. While it would appear that there had been no discussion as to a lump sum for the entire tract, the record is very clear that there were direct negotiations as to the price per acre. Originally, the Allens had demanded $2,000 per acre. Subsequently, Myron Allen indicated that he would be interested in selling at $1,500 an acre. Ultimately, the parties reached an agreement to sell at $1,250 an acre.
After the option was signed, the vendors' conduct continued to demonstrate their acquiescence to the concept of a sale based on acreage. For example, the sellers' attorney addressed a letter to the buyer on June 13, 1962, requesting a copy of a survey. This letter stated:
'Inasmuch as area means quite a bit in the price, as the land is sold per acre, I think you will see that it is material that we must see a copy of Mr. Hungerford's survey to determine how he came out with such a low area.' (Emphasis added.)
This letter was actually typed by one of the sellers, Mila Allen, although it was signed by her attorney. It constitutes a remarkably explicit insight into the sellers' intention to receive a sales price determined by the number of acres.
Another letter from the sellers' attorney was sent to the buyer on July 17, 1962. This letter, also typed by Mila Allen, indicated the sellers' calculation of the acreage at 6.1134, for a total selling price of $7,641.75. In their counterclaim, the sellers computed the acreage at 5.86, for a sales price of $7,325. Thus, as late as July 17, 1962, the sellers were insisting upon a total sales price in excess of the lump sum which they now contend was agreed upon.
The higher price which the sellers demanded on July 17, 1962, resulted from their erroneous assumption that the property involved contained 6.1134 acres; however, this event tends to confirm that the sellers actually expected to receive a price based on the number of acres. The trial court determined that the correct number of acres involved is 4.08, and this figure has not been questioned upon this appeal.
A closing statement, prepared upon the stationary of the sellers' attorney, was received into evidence. It, too, reflected the sellers' contention that the total purchase price was $7,641.75, apparently also based upon the sellers' erroneous computation as to the number of acres involved in the sale.
In determining the parties' intent, it is appropriate to consider...
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