Hopfensperger v. Bruehl

• Decision Date: 31 May 1921
• Citation: 174 Wis. 426,183 N.W. 171
• Parties: HOPFENSPERGER v. BRUEHL ET AL.
• Court: Wisconsin Supreme Court

174 Wis. 426

183 N.W. 171

HOPFENSPERGER

v.BRUEHL ET AL.

Supreme Court of Wisconsin.

May 31, 1921.

Appeal from Circuit Court, Calumet County; George W. Burnell, Judge.

Action by William A. Hopfensperger against Nicholas Bruehl and others. Judgment for plaintiff, and the defendants appeal. Affirmed.

The action was commenced as a replevin action, but was tried as an action for specific performance of a land contract, alleged to have been executed and delivered by the defendants, Ernst and Emma Mayer, whereby they agreed to sell and convey to plaintiff Hopfensperger certain lands and premises located in Calumet county.

The court found that Mayer sold his farm and stock and tools to the plaintiff for a fair and adequate consideration after due consideration and deliberation, and that he and his wife signed a written contract to that effect on April 8, 1919; that the contract called for the payment of interest, but did not specify the rate; that on April 22, 1919, it was orally agreed between plaintiff and defendants that Ernst Mayer could keep the chickens, would have the right to remain in the house until on or about September, 1919, and could have wood for household use and a daily allowance of milk while he should remain in the house, and a garden patch; that on this day it was also agreed that the rate of interest should be 5 per cent. and the mortgage should run for five years, the interest to begin on May 20, 1919; that the plaintiff went into peaceable possession of the premises and the personal property, except the dwelling house and garden patch on April 28, 1919, with the consent of the defendant Ernst Mayer; that on or about May 12, 1919, Ernst Mayer concluded to repudiate the contract and placed every obstacle in the way of plaintiff's enjoyment of the premises, nailing up gates and doors to prevent the plaintiff from using them, interfering with his milking of cows, and taking away his team of horses, harness, and wagon from the premises; that these acts of trespass continued until this action was brought to restrain him; that the subsequent oral agreement did not materially change the contract, but only made more definite and certain the time of payment which the court could have fixed, and that no change of contract was needed to enforce it as to the wife, her signing of the original contract having been a full compliance with the statute in that respect; that the personal property was fully described in the contract; that Ernst Mayer absolutely repudiated the contract on or about May 12, 1919, hiding himself in order to avoid tender of the money and note, which were duly tendered on May 21, 1919; that the defense of fraud and intoxication, set up in answer, has been abandoned by defendants; that plaintiff abandons any and all claim for personal service as agreed to under the contract for the painting of the house and putting a new roof thereon.

The court also found that the contract provided that when the sum of $13,000, with interest, shall be fully paid and in the time and manner above specified, that the defendants shall execute and deliver to the plaintiff a deed; that a cash payment of $3,000 was payable on May 20, 1919, on which day the plaintiff tried to pay the same, and that he also had prepared to tender for delivery a note for $3,475, payable July, 1 1919, with interest at 5 per cent., and a note for $6,500, with interest at 5 per cent., payable five years after date, and secured by a mortgage bearing even date therewith, which cash, notes, and mortgage could not be delivered because defendant Mayer hid himself and could not be found; that the cash, notes, and mortgage were duly deposited at the Bank of Menasha for the defendant Ernst Mayer and he was notified that said moneys and securities were at the bank for him; that Ernst Mayer and his wife refused, upon the due tender of the notes and securities, to execute and deliver to the plaintiff the deed of said premises and property as agreed in the contract; that upon the trial of the action the defendants contended the complaint included an action for specific performance, which contention was conceded by plaintiff's attorneys, who introduced testimony on behalf of the plaintiff with reference to the contract which took place on April 22, 1919. The court held that the plaintiff, Hopfensperger, shall deposit with the clerk of the circuit court of Calumet county the sum of $3,000, which was due and payable May 20, 1919, and which on that day had been duly tendered to defendant Ernst Mayer and refused by him, and also deposit with the clerk of...