Hausmann v. Wittemann
| Decision Date | 01 February 1965 |
| Citation | 132 N.W.2d 537,26 Wis.2d 482 |
| Parties | Dr. William HAUSMANN, Respondent, v. Henry WITTEMANN, Appellant. |
| Court | Wisconsin Supreme Court |
O'Meara & O'Meara, West Bend, for appellant.
Simester, Schowalter & Bunk, West Bend, for respondent.
The appellant, Wittemann, argues that the trial court was in error in failing to find that the contract was rescinded by the mutual consent of the parties. We agree with this contention, and we accordingly reverse the trial court and direct that the action for specific performance be dismissed.
We arrive at this result since a review of the record indicates the trial court's decision is contrary to the great weight and clear preponderance of the evidence. Nehls v. Nehls (1963), 21 Wis.2d 231, 124 N.W.2d 18. Whether the contract was rescinded poses a question of fact to be determined from the intent of the parties as manifested either in their words, acts, or conduct. Skopes Rubber Corp. v. United States Rubber Co. (1st Cir., 1962), 229 F.2d 584, 594; and Church v. Bobbs Merrill Company (7th Cir., 1959), 272 F.2d 212.
The trial judge concluded that there was no evidence to indicate that the parties mutually agreed to rescind the contract. We disagree. Upon review of the testimony only of the verbal acts of the parties on the day in question, the result might appear to be correct. According to the statements of Wittemann and the doctor, the former said he was not selling and the latter said nothing. But this analysis overlooks the decisive act of the return of the check by Wittemann and its receipt and retention by Doctor Hausmann. If the sale was to be simply postponed, the seller, Wittemann, would have no reason to return the earnest money. If the doctor thought the sale to be postponed until the tenant was removed from the property, he would have no reason to accept the check. In accepting the check, the doctor manifested an acquiescence in the termination of the contractual relationship.
In Douglass v. Ransom (1931), 205 Wis. 439, 445, 237 N.W. 260, we held that the retention of the earnest money check (received in the mail) might be construed as an acquiescence that the agreement to sell was rescined. We, however, found no rescission because of the other acts of the buyer (the filing of the lis pendens and the commencement of the action) negated any inference of acquiescence and showed that he did not intend to waive his rights under the contract. Here the vendee commenced no...
To continue reading
Request your trial
-
Ricchio v. Oberst, 75-345
...of fact to be determined from the intent of the parties as manifested either in their words, acts or conduct. Hausmann v. Wittemann, 26 Wis.2d 482, 132 N.W.2d 537 (1965). In the instant case, the parties' words, acts or conduct, as evidenced in the affidavits, are in dispute and subject to ......
-
Delap v. Institute of America, Inc.
...(1966), 29 Wis.2d 355, 362, 138 N.W.2d 729; Kirchen v. Gottschalk (1965), 26 Wis.2d 123, 126, 131 N.W.2d 885; Hausmann v. Wittemann (1965), 26 Wis.2d 482, 485, 132 N.W.2d 537; Weed v. Lepianka (1966), 30 Wis.2d 198, 204, 140 N.W.2d 305. In addition, the evidence must be reviewed by this cou......
- Fucela's Estate, In re
-
Thoma v. Firstar Bank Milwaukee
...suit. The court concluded that it was undisputed that Thoma "walk[ed] away from the deal." This case is similar to Hausmann v. Wittemann, 26 Wis.2d 482, 132 N.W.2d 537 (1965). The parties entered into a contract in 1954. After a dispute arose between the parties regarding the presence of a ......