Inglis v. Fohey

• Decision Date: 05 June 1908
• Citation: 136 Wis. 28,116 N.W. 857
• Parties: INGLIS v. FOHEY ET UX.
• Court: Wisconsin Supreme Court

136 Wis. 28

116 N.W. 857

INGLIS

v.FOHEY ET UX.

Supreme Court of Wisconsin.

June 5, 1908.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Clement W. Inglis against Henry Fohey and wife. On death of defendant Fohey, his wife, Rosa Fohey, executrix, was substituted as defendant. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action by the vendee to enforce specific performance of an alleged written contract to convey certain premises in the city of Milwaukee. The defendant Henry Fohey answered, admitting the execution of two written instruments, but denying that they amounted to an enforceable contract, and alleging that if any contract was made, it was merely verbal, and hence void. Upon the trial the facts were not greatly in dispute, and may be stated in substance as follows: On and for some time prior to April 28, 1906, the Wisconsin National Bank of Milwaukee owned two adjoining lots, numbered 8 and 9, in the subdivision of that part of block 9 in Clark's addition to Milwaukee lying north of National avenue. There was a brick house on lot 8, which was numbered 1018, and a frame house on lot 9, which was numbered 1020 National avenue, beside a small frame cottage on the back end of the property fronting on Twenty-First avenue. The plaintiff for several years had occupied the brick house on lot 8, numbered 1018, as a tenant of the bank. The Milwaukee Trust Company was acting as agent of the bank for the sale of the entire premises, and on the 28th day of April, 1906, the defendant Henry Fohey entered into a written contract with the bank, by which the bank agreed to convey the premises to him upon the payment of $8,000. On the evening of the same day, which was Saturday, Fohey and the plaintiff met and discussed the question of a joint purchase of the premises, and as a result of that discussion executed the following agreement: “Mil., April 28, 1906. We, the undersigned, hereby agree to divide the property numbered 1018 National avenue, brick house, and 1020 National avenue. Mr. Inglis to have the property west of the line of Mr. Albright's property enough feet to take brick house and eaves with one foot added or 32 inches from wall of bay window. Mr. Fohey to have all land west of said 32 inches and pay $3,775.00 (three thousand seven hundred and seventy-five dollars). Mr. Inglis to pay $4,225.00 (forty-two hundred twenty-five dollars) for the property described. Henry Fohey. Clem. Inglis.” At the same time Inglis paid Fohey $25 and received from him the following receipt: “Milwaukee, Wis. Apr. 28, 1906. Received of C. W. Inglis twenty-five and 00/100 dollars as a deposit to secure and abide by a contract signed by said C. W. Inglis and Henry Fohey. The said twenty-five dollars to be returned to said C. W. Inglis when contract is entered into with the Wisconsin Trust Company in relation to the property 1018 and 1020 National avenue. Henry Fohey.” Upon the following day a surveyor, at the request of both parties, made a survey of the premises, and set stakes marking the line of division named in the agreement. The surveyor also made a small sketch of the premises, with the division line marked on it, and gave it to the plaintiff, and on Monday following both parties met at the office of the Wisconsin Trust Company, gave the surveyor's sketch to the company, and ordered abstracts made of the property, the original being for Mr. Fohey, and a certified copy for Mr. Inglis, which abstracts were, respectively, delivered a few days later. On the 7th day of May, 1906, the defendant Fohey applied to the owner for a warranty deed of the entire premises, and the same was at once executed and delivered, and Fohey at the same time mortgaged the premises to one Godsell for $4,800, both deed and mortgage being recorded on the day of their execution. On the 11th day of May the plaintiff tendered to Fohey $4,200, and demanded a conveyance of that part...