Heins v. Thompson & Flieth Lumber Co.

• Decision Date: 15 May 1917
• Citation: 165 Wis. 563,163 N.W. 173
• Court: Wisconsin Supreme Court
• Parties: HEINS v. THOMPSON & FLIETH LUMBER CO. ET AL.

165 Wis. 563

163 N.W. 173

HEINS

v.THOMPSON & FLIETH LUMBER CO. ET AL.

Supreme Court of Wisconsin.

May 15, 1917.

Appeal from a Judgment of the Circuit Court for Bayfield County; G. N. Risjord, Circuit Judge.

Action for specific performance of eight alleged contracts for purchase of land.

The complaint was to this effect: In April, 1913, F. J. Stevenson, as agent for plaintiff, the holder of the legal title to the lands in question (describing the same, consisting of a one-half section) with power to sell the same, negotiated with defendants Thompson & Flieth Lumber Company, W. H. Flieth and H. G. Flieth, for the sale thereof to them for seventeen dollars per acre, one dollar per acre to be paid the first year and the balance in five annual payments with interest at six per cent. per annum, resulting in a written agreement that they should purchase said lands of plaintiff upon such price and terms. Accordingly, plaintiff sent defendants eight contracts duly executed by said agent in duplicate, each set being for one forty, and, at defendants' request, procured abstracts of title to said lands and sent the same to them. Later, H. G. Flieth, in defendants' behalf, paid $300 upon the first year's installment of purchase money. At defendants' request such contracts described M. A. Flieth as the purchaser, who was the wife of W. H. Flieth. Plaintiff has always been ready to carry out said contracts on his part, and in May, 1913, duly tendered said contracts to defendants for execution but they refused to execute the same or perform as they had agreed.

The relief prayed for was that defendants should be required to execute the contracts, pay the purchase money which was due thereon and the taxes which became due subsequent to the date of the agreement, and pay costs and disbursements of the action.

The Flieths answered jointly to this effect: In the negotiations with plaintiff, W. H. Flieth and H. G. Flieth acted on behalf of M. A. Flieth. The $300 was paid in her behalf pending the negotiations. The character of the lands and prospects in regard thereto were falsely represented, inducing such payment and continuance of negotiations. Thereafter, before reaching a conclusion as to the purchase, defendants discovered the facts, refused to go further with the matter and demanded back the $300, which was refused. They further answered counterclaiming for a recovery of the $300 and interest.

Defendant, Thompson & Flieth Lumber Company, answered admitting that W. H. Flieth, H. G. Flieth and M. A. Flieth negotiated with plaintiff through his agent for purchase of the land, denying that any contract resulted or that any negotiations occurred in its behalf and putting in issue material allegations of the complaint.

This was established by evidence: April 18, 1913, the agent mentioned in the complaint, who was conceded to have authority in respect to the matter, wrote W. H. Flieth proposing to sell the land in question at the price mentioned in the complaint,--$1.00 per acre, to be paid for the first year.

April 13, 1913, Thompson and Flieth Lumber Co., by W. H. Flieth, Secretary and Treasurer, replied that:

“I will take up the matter * * * with H. G. Flieth and if he wishes to do anything, shall be pleased to advise you without delay.”

Three days later the company, by W. H. Flieth, further answered Mr. Stevenson's letter:

“I have taken this matter up with Mr. H. G. Flieth and he advises me to have you get out the necessary papers * * * on the basis of $1.00 per acre for the first year's payment; but to make the contract separate for each forty so that we can pay them up if we so desire. You may make them out in the name of M. A. Flieth, sending contracts with abstracts, to the National German-American Bank for collection.”

According to the instructions aforesaid, contracts in due form were drawn in duplicate, duly signed on behalf of plaintiff, and sent to H. G. Flieth to be executed, and one of each set to be then returned. Such contracts specified the price of the land and terms of payment.

After the contracts were received, H. G. Flieth, by mail, sent $300 to apply thereon, saying “Here is three hundred dollars on the land we are getting.” In a letter written by the company February 6th, 1914, it treated the payment as having been made with its money. May 14, 1913, W. H. Flieth, by letter, advised Stevenson that H. G. Flieth had agreed to cover the $1.00 initial payment on the lands and that, “as soon as the abstract is received and title looked over, I shall be pleased to send you the contracts properly signed.”

August 1, 1913, by letter, Stevenson requested W. H. Flieth to send the contracts at once, to which reply was made that he had time to take up the matter but hoped to do so without delay.

August 25, 1913, Thompson and Flieth Lumber Company, by W. H. Flieth, Secretary and Treasurer, advised Stevenson that the land was “misrepresented to me.” “I could not conscientiously recommend it to any of my friends.”“If you will kindly return the money we have advanced in the deal we will be pleased to return the papers unexecuted.”

There was some conflicting evidence as to whether material misrepresentations were made by Stevenson which induced defendants to go as far as they did with the negotiations and pay the $300 and further evidence that defendants refused, upon plaintiff's demand, to execute and carry out the contracts as he claimed the same were made; that H. G. Flieth was the father of W. H. Flieth, M. A. Flieth was the latter's wife, H. G. Flieth was the president and W. H. Flieth the Secretary and Treasurer of the company; that they were the active directors and principal stock-holders thereof; that they had authority to make such contracts as those in question; that the letter, signed by the company, was written by W. H. Flieth; that the eight separate contracts were prepared as requested in the letter written by him; that he made no objection thereto, and that the abstracts were received but not examined. The contracts were dated April 18, 1913. So far as necessary, further reference to evidence found in the record will be referred to in the opinion.

The court decided: (1) Plaintiff and defendants, April 18, 1913, agreed in writing upon a sale by the former to the latter of the land in question for $5,713.22, $326.51 in cash and the balance payable in five equal, annual installments with six per cent. interest per annum payable annually, the purchaser to pay taxes levied for 1913, and thereafter. (2) Later, in May, 1913, the defendants paid $300 on the purchase money but thereafter refused to further perform their agreement. (3) $4,308.41 for principal and interest is due. (4) There will become due, $1,077.48 April 18, 1917, and a like sum April 18, 1918, with interest on each sum from April 18, 1916, payable annually. (5) There are outstanding tax certificates on the lands for 1913, 1914 and 1915. (6) No false representations were made to defendants of the character mentioned in the complaint.

As conclusions it was held that the lumber company, W. H. Flieth and H. G. Flieth should, within thirty days after service of notice of the entry of judgment, execute the several land contracts mentioned, or, if the originals could not be produced, execute the copies in lieu thereof filed with the court; that they should be required to pay plaintiff the amount due as found, as aforesaid, with interest from September 6, 1916, pay the balance of the purchase money as the same should become due, and redeem the lands from the tax liens; that they are not entitled to recover on their counterclaim and that plaintiffs should recover of them costs.

Judgment was rendered accordingly.

A. W. MacLeod, of Washburn, for appellants.

John J. Fisher, of Bayfield, for respondent.

MARSHALL, J.

The principal point raised by appellant is that the finding that defendants made a contract with plaintiff to purchase the land, as claimed, is not supported by the evidence.

[1][2] Respondent first replied that exceptions to the findings were not filed within ten days after due service of the entry of judgment as provided by Section 2870, Stats., and were not incorporated into the bill of exceptions. No answer is made thereto by appellants' counsel.

The record discloses that notice of the entry of judgment was duly served on the 8th day of November, 1916, and that exceptions to the findings were not filed until seventeen days thereafter. A copy thereof, marked in pencil, “duplicate,” is in the bill of exceptions with pencil marks across the face. The trial court certified that the bill contained “the exceptions filed to the findings.” We conclude that the paper marked as aforesaid was in the bill when certified and was taken as a copy of the exceptions, and hold that they were sufficiently incorporated in such bill.

The court may allow exceptions to findings to be filed after the time provided by statute. Ottillie v. Waechter, 33 Wis. 252. While exceptions filed without leave after the time has expired are of no effect,--Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61,--exceptions not so filed, if found in the record unexplained, are to be regarded as having been filed by leave under Section 2831, Stats. Henrizi v. Kehr, 90 Wis. 344, 63 N. W. 285;Killingstad v. Meigs, 147 Wis. 511, 133 N. W. 632, Ann. Cas. 1912D, 1133. So we conclude that the exceptions here were regularly filed and...