Heller v. Baird

• Decision Date: 09 November 1926
• Citation: 191 Wis. 288,210 N.W. 680
• Parties: HELLER v. BAIRD ET AL.
• Court: Wisconsin Supreme Court

191 Wis. 288

210 N.W. 680

HELLER

v.BAIRD ET AL.

Supreme Court of Wisconsin.

Nov. 9, 1926.

Appeal from Circuit Court, Milwaukee County; Edward T. Fairchild, Judge.

Action for specific performance by M. Heller against Hannah Baird and another, in which defendant Hannah Baird died while cause was pending. Judgment for plaintiff, and defendant Charles Baird appeals. Affirmed.--[By Editorial Staff.]Lawrence Conlan, of Milwaukee (Winfred C. Zabel, of Milwaukee, of counsel), for appellant.

S. D. Stern, of West Allis (Michael Levin, of Milwaukee, of counsel), for respondent.

DOERFLER, J.

[1] On the 18th day of April, 1923, one Hannah Baird and Charles Baird, her husband, executed and delivered to the plaintiff an agreement in writing which reads as follows:

“April 18, 1923.

Received of M. Heller, twenty-five ($25.00) dollars, deposit on property lot numbered one (1) in block numbered seven (7), in Central Improvement Company's subdivision, 6501 Greenfield, two thousand nine hundred seventy-five ($2,975.00) dollars, additional to be paid in ninety (90) days or before. Deed and clear abstract to be given when two thousand nine hundred seventy-five ($2,975.00) dollars is paid. Purchase price $10,000.00 net.

This transaction is subject to written approval of owners, and if not approved, money to be refunded by the undersigned, but if approved to be closed ninety (90) days from date 1923 or above deposit forfeited. First mortgage to be taken for three (3) years.

+-----------------------+
                ¦[Signed]¦Hannah Baird. ¦
                +-----------------------+
                

Charles Baird.”

The defendant Hannah Baird on the date of said agreement was the owner of lot 1 in block 7 in Central Improvement Company's subdivision No. 1, in the northwest quarter of section 3, town 6 north of range 21 east in the city of West Allis, Milwaukee county, Wis. She had been desirous of disposing of this property for some time previous to the date of this agreement, and the plaintiff, a real estate dealer, on that date called upon her, whereupon negotiations ensued which resulted in the execution of the same. Within the time provided for by the agreement the balance payable in cash was duly tendered, together with a mortgage to secure the deferred payment, which tender was refused, While the cause was pending, and before trial, Hannah Baird died intestate, leaving as her sole heir at law the defendant Charles Baird.

[2] The defendant Charles Baird, among other things, pleaded the statute of frauds as a defense. The evidence disclosed that there were a number of Central Improvement Company's subdivisions in the city of West Allis, but that the subdivision in which No. 6501 Greenfield avenue is located is known as Central Improvement Company's subdivision No. 1. While the agreement does not in express terms describe this property as 6501 Greenfield avenue, it is quite commonly known that the word “avenue” is frequently omitted, and when a number like the one in question is used in connection with the name of the street, it refers to a street or avenue. The agreement does not mention a city, county, or state, and it is claimed that the agreement is defective in that respect because the deceased may have owned property of corresponding number on a street called “Greenfield,” in some other city than West Allis, and in another county and state. However, the undisputed evidence is to the effect that the deceased did own the property known as 6501 Greenfield avenue, in the city of West Allis; that she occupied the same on the date of the agreement and for some time thereafter, as her home; and that this property was the only property which she ever owned. There was therefore a complete meeting of the minds of the parties with respect to the property to be sold, the location of the property, and the ownership thereof. In equity, that is certain which can be made certain.

In the case of Wisconsin Central R. Co. v. Schug, 155 Wis. 563, 145 N. W. 177, Chief Justice Winslow, in the opinion rendered by him, said:

“A land contract which does not specifically describe the land to be conveyed, but refers to it in such terms that by the aid of facts and circumstances surrounding the parties at the time the court can with reasonable certainty determine the land which is to be conveyed, satisfies the statute of frauds in this regard and may be enforced”--citing Messer v. Oestreich, 52 Wis. 684, 10 N. W. 6;Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176;Inglis v. Fohey, 136 Wis. 28, 116 N. W. 857.

See, also, Harney v. Burhans, 91 Wis. 349, 64 N. W. 1031.

In Durkin v. Machesky, 177 Wis. 595, 188 N. W. 97, in the opinion by Justice Jones, it is said:

“If the writing had contained in addition to that used such words as ‘my property,’ or ‘the property in my possession,’ and if defendant had owned no other property, or had possession of none other at the place in question, or if some similar language had been used as a foundation for the parol evidence, a different situation would be present, and the rule, ‘That is certain which can be made certain,’ might be invoked.”

In the present action, deceased was in possession of the identical property which the plaintiff claims to have purchased under land contract, and it was the only property which he had ever owned. There was no difficulty,...