Jacobs v. Spalding

• Decision Date: 28 February 1888
• Parties: JACOBS v. SPALDING ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 177

36 N.W. 608

JACOBS

v.SPALDING ET AL.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from circuit court, Brown county.

Ellis, Green & Merrill, for appellant.

Fairchild & Fairchild, for respondents.

TAYLOR, J.

The appellant brought this action to recover $1,000, and the interest thereon, from the respondents, upon the following contract, viz.:

“This agreement, made by and between John B. Jacobs, of the town of Marinette, in the county of Oconto, and the state of Wisconsin, of the one part, and Jesse Spaulding, of the city of Chicago, in the state of Illinois, Abner Kirby, of the city of Milwaukee, in the state of Wisconsin, Isaac Stephenson, of said town of Marinette, Oconto county, and Samuel M. Stephenson, of Menominee, in the county of Menominee, in the state of Michigan, of the other part, witnesseth, that the said John B. Jacobs, in consideration of the sum of thirteen thousand dollars, hath bargained and sold to the party of the other part that certain property known as the ‘Steam-Boat Queen City,’ with her machinery, furniture, and appurtenances, and all those certain tracts of real estate owned by him in the Menominee river, and on the bank of said river, in Oconto county, described as follows: Lot three (3) of section thirty-three, (33,) containing 1 & 74-100 acres; lot number five (5) in section thirty-two, (32,) containing 21-100 acres; lot six (6) of section thirty-two, (32,) containing 1 & 25-100 acres,--all in township thirty-one (31) of range twenty-three (23) E.; lot number eight, (8,) section six, (6,) in township number thirty (30) N., range twenty-four (24) west, [east?] containing 56-100 acres; also lots of land described in deed from party of first part to party of second part, dated May 14, 1866, the deeds for said boat and land being executed this May 14, 1866; also a description of land described in auditor's deed of state of Michigan, dated May 2, 1860.

And further hath agreed to sell and convey that certain real estate on the bank of the Menominee river, in said town of Marinette, meaning all the land known as the ‘Jane Dunnett Land,’ and willed by her to her son James Dunnett, for the sum of two thousand dollars, to be paid when a deed of the said land can be procured under a proper order of the court for the sale of the same; it being understood and agreed that said John B. Jacobs will use due diligence in procuring the guardian of said minor child of Jane Dunnett to make application for an order of such sale, and to prosecute all proper and legal proceedings therefor with diligence; and that in the event that said real estate, at its offer at public sale under such order, shall not bring over the sum of two thousand dollars, the same shall be sold to said party of the second part for that sum, and they agree to pay said sum of money for the same; but, in case the said John B. Jacobs shall fail to make such title good to said parties, he shall suffer no other forfeiture than herein mentioned.

And it is agreed that the parties of the second part pay party of the first part the sum of three thousand dollars down, and the sum of nine thousand dollars in equal annual payments, in one, two, and three years from the date, with seven per cent. per annum, annually, interest thereon; and that the party of the second part keep and retain the sum of one thousand dollars until the party of the first part shall cause to be executed and delivered to them a good deed of conveyance of said property so willed by said Jane Dunnett to her son, founded upon and under a proper order of a court of competent jurisdiction for the sale thereof; and, upon delivery of the deed aforesaid, party of the second part shall pay party of the first part the said sum of one thousand dollars, as well, also, as the said sum of two thousand dollars for the purchase money of said land; and, if said party of the first part shall entirely fail to cause said Dunnett land to be conveyed to party of the second part, the said sum of one thousand dollars, part of the thirteen thousand dollars first aforesaid, be deemed to be forfeited to party of the second part in payment as and for liquidated damages for his breach in so failing to procure such conveyance to them.

Witness the hands of the parties hereto, respectively, this 14th day of May, A. D. 1866.

+----------------------------------------------------+
                ¦JOHN B. JACOBS.  ¦[Seal.]¦WELLS & SPAULDING.¦[Seal.]¦
                +-----------------+-------+------------------+-------¦
                ¦S. M. STEPHENSON.¦[Seal.]¦I. STEPHENSON.    ¦[Seal.]¦
                +-----------------+-------+------------------+-------¦
                ¦ABNER KIRBY.     ¦[Seal.]¦                  ¦       ¦
                +----------------------------------------------------+
                

In the presence of E. S. INGALLS.”

The plaintiff, in his complaint, sets out the contract, and alleges full performance on his part, except as to the condition upon which the defendants were to be entitled to retain $1,000, to recover which the action is brought, and, as to such condition, he alleges generally that it became impossible for him to perform it, and then alleges the following facts as an excuse for the non-performance of said condition on his part, to-wit: “And as to the aforesaid condition of said agreement, which it became impossible for the plaintiff to perform, and from the performance of which the plaintiff was excused and discharged, plaintiff alleges that said condition only relates to the lands mentioned in said written agreement as the ‘Jane Dunnett Land;’ that he used due diligence in procuring the minor child of Jane Dunnett to make application for an order for sale of the land in said agreement referred to as the ‘Jane Dunnett Land,’ willed by her to her son James Dunnett, and that, upon application duly made on behalf of said minor, an order of license for the sale of said land was duly made by the county court in and for said county of Oconto on the 4th day of September, 1866; and that after due notice, pursuant to said order and the laws of Wisconsin, the said land known as the ‘Jane Dunnett Land’ was offered for sale at public vendue, on the 8th day of October, 1866, at the place in said town of Marinette designated in the notice of said sale, and was thereupon duly struck off and sold to the highest bidder for more than two thousand dollars, to-wit, for the sum of three thousand dollars or upwards; that plaintiff attended said sale, and endeavored to bid off and purchase the said ‘Jane Dunnett Land’ for two thousand dollars or less, and did actually bid two thousand dollars therefor at said sale, but the plaintiff was overbidden by other parties, and was thereby, without any fault on his part, prevented from purchasing said lands for two thousand dollars; that the defendant Isaac Stephenson, for himself and the other defendants herein, also attended said sale, and was then and there notified by the plaintiff that, because plaintiff was overbidden, he (the plaintiff) could not buy said ‘Jane Dunnett Land’ for two thousand dollars, and that, if they (said defendants) wanted the land, they should bid for it; that, accordingly, the said Isaac Stephenson made a bid of about $2,200 for said land, when a higher bid was made by some other person; that the said Isaac Stephenson for himself, and by authority of the other defendants, then abandoned all further efforts to purchase said land, and the same was afterwards, at the same sale, duly struck off and sold to this plaintiff for $3,300 or thereabouts, which was the highest sum bidden therefor. And the plaintiff alleges that the aforesaid sum of one thousand dollars, part of said $13,000, by virtue of said agreement, and of the facts above stated, became immediately after the date of said public sale, and still is, due and payable from said defendants to said plaintiff, with interest thereon from October 8, 1866; but although then, and often afterwards, thereunto notified and requested, the said defendants have never paid said sum of one thousand dollars, nor any part thereof, but have refused, and still do refuse, to pay the same, or any part thereof, to the damage of this plaintiff in the sum of twenty-five hundred dollars.”

To this complaint the defendants demurred, upon two grounds: “(1) That the complaint does not state facts sufficient to constitute a cause of action. (2) That the action was not commenced within the time limited by law; that is to say, the time within which plaintiff could commence his action was limited, by section 4222 of the Revised Statutes, to the term of six years after the cause of action accrued.” The circuit court sustained the demurrer, and, as the plaintiff declined to serve an amended complaint within the time fixed in the order sustaining the demurrer, judgment was entered upon such order dismissing the complaint of the plaintiff, with costs to the defendants, and from such judgment the plaintiff appeals to this court.

Whether the learned circuit judge sustained the demurrer on the ground that the complaint did not state facts constituting a cause of action, or upon the ground that the action was barred by the statute, or upon both grounds, does not appear from the records. From the course of the argument on this appeal, we are led to believe that the circuit judge sustained the demurrer upon the first ground, viz., that the complaint does not state facts sufficient to constitute a cause of action. We think it too clear for argument that the action was not barred by the six-years statute. The promise of the defendants upon which the action is brought is contained in a sealed written contract, and the action is based solely upon such sealed written contract. The limitation of such actions is contained in section 4220, Rev. St., instead of section 4222, Rev. St. Section 4220 prescribes a 20-years limitation. Subdivision 2 of said section reads as follows: “An action upon a sealed instrument, when the cause of action accrues within this state, except those...