Haumersen v. Sladky

• Decision Date: 07 January 1936
• Citation: 264 N.W. 653,220 Wis. 91
• Parties: HAUMERSEN ET UX. v. SLADKY ET AL.
• Court: Wisconsin Supreme Court

220 Wis. 91

264 N.W. 653

HAUMERSEN ET UX.

v.SLADKY ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1936.

Appeals from a judgment and supplemental order of the Circuit Court for Racine County; E. B. Belden, Judge.

Affirmed.

Action brought by the plaintiffs, Charles F. Haumersen and wife, against the defendants, Joseph F. Sladky and Anton Smerda, for specific performance of a contract entered into between the plaintiff and Sladky for the exchange of real property.

In answer to plaintiffs' complaint, Sladky admitted making the contract but denied, on several grounds, that plaintiffs were entitled to specific performance. Smerda claimed an interest in Sladky's property by virtue of a three-year lease which the latter gave him subsequent to the date of plaintiffs' contract. Upon a trial to the court, findings of fact and conclusions of law were made, upon which judgment for specific performance was entered on May 11, 1935, with the provision that, if Sladky desired and so notified the plaintiffs, they should have fifteen days to record further proof in respect to the correction of certain matters which Sladky claimed constituted defects in plaintiffs' title. Sladky failed to give such notice to plaintiffs, but they made those corrections of their own accord, and, on July 12, 1935, the court entered a supplemental order adjudging that plaintiffs had recorded proof showing the correction of those defects, and that the abstract of title had been posted accordingly. Defendants appealed from the judgment and the supplemental order.

Edmund O. Gilday, J. M. Weisman, and Samuel M. Weisman, all of Racine, for appellants.

Hand & Quinn, of Racine, for respondents.

FRITZ, Justice.

It suffices for a consideration of the questions involved on the appeals herein to note, at the outset, the following facts which were established by evidence that is undisputed in many respects: On Saturday, July 7, 1934, the plaintiffs and Sladky duly entered into a contract which was drafted by Robert G. Nelson, a licensed real estate broker whom Sladky had engaged. Under that contract, Sladky agreed to convey his farm, including personal property and crops, to plaintiffs, in exchange for their house and lot in Racine, and five shares of certain bank stock, and their assumption of a mortgage on the farm for $2,000. As earnest money, each of the parties paid $50 to Nelson, on account of the commission which Sladky contracted to pay to him. He had been endeavoring to sell Sladky's farm to plaintiffs for two weeks prior to July 7, 1934. During that period, both parties had inspected each other's property, including the personal property used in farming, and the reasonableness of the terms of the exchange, as finally embodied in their contract, is not questioned in this litigation.

The contract provided that “* * * The deal is to be closed when abstracts are posted to date. Possession of farm given as soon as Mr. Sladky can gain possession of his Geneva Street House.” By July 9th, Nelson had the abstracts of title extended and delivered plaintiffs' abstract to Edmund O. Gilday, who was Sladky's attorney, and the latter's abstract to Louis F. Quinn, the attorney for plaintiffs. Under arrangements made between the parties, plaintiffs had moved five loads of their household goods to Sladky's farm by Wednesday, July 11th, and he had moved household effects to plaintiffs' city property for storage until he could occupy his Geneva street house. On July 11th, Gilday told Sladky that he had just glanced at plaintiffs' abstract and that there was a “shadow” on the title. That evening, when plaintiffs brought another load of furniture to Sladky's farm, he told them to “Hold off,” that they should not haul any more, and that the “papers would cost too much.” He was very abrupt, and then went into the house, slammed the door, and refused to talk to plaintiffs. On July 14th, they went to the farm and told Sladky's mother that they wanted to see him. She replied that he was away and that they would have to see his lawyer, Gilday. Thereafter Sladky refused to talk to plaintiffs. On July 18, 1934, Gilday wrote Sladky that in his opinion plaintiffs' title was not marketable because of six imperfections which appeared in plaintiffs' abstract; and on July 28, 1934, they received a letter written by Gilday, on behalf of Sladky, stating that he rescinded the sale because plaintiffs' title was not merchantable by reason of those six imperfections. On July 30, 1934, E. B. Hand, as attorney for plaintiffs, tendered a warranty deed and the abstract of title to Sladky, together with a writing in which plaintiffs demanded that he perform the contract of July 7, 1934, and in which they offered to deliver the bank stock and the note and mortgage on the farm, and to correct promptly any defects in the title to plaintiffs' premises, including those mentioned in Gilday's letter received on July 28, 1934. On August 10, 1934, Sladky leased his farm to the defendant Smerda. He had moved his household effects to his Geneva street house within a week after his tenant vacated on July 14, 1934.

On August 20, 1934, plaintiffs brought this action for specific performance. The issues were tried on January 15, 1935, but, because of the request of defendants' counsel for additional time to file briefs, the court's decision was delayed until April 26, 1935. On April 30, 1935, findings of fact and conclusions of law were filed, and on May 11, 1935, judgment was entered for specific performance, with a proviso that, if Sladky gave notice to plaintiffs that he desired to have them correct certain matters which he had claimed constituted imperfections in title, then the plaintiffs should make those corrections within fifteen days, and that thereupon plaintiffs could obtain an order showing that fact. Although no such notice was given by Sladky, the court, on June 28, 1935, ordered the case reopened for taking testimony in respect to the plaintiffs' correction of those imperfections, and on July 12, 1935, adjudged that the corrections had been made by the plaintiffs pursuant to the judgment, and that the abstract of title, as extended, showed that proof of those corrections had been recorded.

[1][2] On this appeal, Sladky contends that his contract with the plaintiffs was unenforceable because it was too indefinite and uncertain to comply with the statute of frauds (St. 1933, § 240.08), in that it did not specify the items of personal property which were to be conveyed by Sladky. The contract, in that respect, provides: “The trade price of said property is Fifteen Thousand ($15,000.00) Dollars, which includes all personal property and crops, excepting therefrom one fat hog to be left on the premises until time to butcher, and also between 12 and 18 hens.” That provision is unambiguous on its face. Sladky claims, however, that there were household goods, two automobiles, a truck, live stock, poultry, and other items of personal property on the farm which did not belong to him, and that the parties were to agree as to what was to go with the farm and to make an inventory and itemized bill of sale thereof when the abstracts were posted and the transaction was consummated by an exchange of deeds. On that subject, the court found that when the plaintiffs and Sladky inspected the farm before signing the contract on July 7, 1934, Sladky pointed out the machinery, live stock, and other personal property used in the operation thereof, which was to be included in the sale, and that the items thereof as then pointed out by Sladky were correctly listed in an inventory prepared shortly thereafter by a witness present when Sladky pointed out those items as property which was to be included in the sale. Those findings and the court's conclusion that the contract was not so indefinite and uncertain as to be unenforceable are amply supported by the evidence. The application of the provision that the trade price “includes all personal property and crops excepting therefrom one fat hog * * * and between 12 and 18 hens,” and the identification of the subject-matter thereof, could be shown by parol evidence, as to the surrounding circumstances and situation of the parties at the time the contract was made. As was said in Docter v. Hellberg, 65 Wis. 415, 421, 27 N.W. 176, 178:

“The law will not declare an agreement void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain. [Citations.]

A description which can thus be made certain by proof of an extrinsic fact referred to in the agreement must be regarded as sufficiently certain to enforce specific performance.”

In accordance therewith, this court said, in Inglis v. Fohey, 136 Wis. 28, 32, 116 N.W. 857, 859: “Where parties have attempted to reduce an agreement to writing, and such writing is in some respects indefinite or ambiguous, the contract does not necessarily fail, nor will a party suing upon it be denied relief. If, by aid of evidence showing the situation and surroundings of the parties at the time, and their subsequent acts, if any, construing the terms of the writing, the court can with reasonable certainty determine the meaning intended by the parties, the court will not allow the contract to fall, but will construe it in the light of such evidence, and enforce its terms as so construed, if there be no other fatal objections to it.”

To the same effect, see Messer v. Oestreich, 52 Wis. 684, 689, 10 N.W. 6;Whitney v. Robinson, 53 Wis. 309, 314, 10 N.W. 512;Parkinson v. McQuaid, 54 Wis. 473, 484, 11 N.W. 682;Meade v. Gilfoyle, 64 Wis. 18, 24 N.W. 413;Combs v. Scott, 76 Wis. 662, 673, 45 N.W. 532;Kipp v. Laun, 146 Wis. 591, 131 N.W. 418;Hopfensperger v. Bruehl, 174 Wis. 426, 183 N.W. 171;Spence v. Frantz, 195 Wis. 69, 217 N.W. 700;Moayon v. Moayon, 114 Ky. 855, 72 S.W. 33, 60 L.R.A. 415, 423, 102 Am.St.Rep. 303; Pomeroy's Specific Performance of Contracts (3d Ed.) § 90.

...