Jilek v. Zahl

• Decision Date: 11 January 1916
• Citation: 162 Wis. 157,155 N.W. 909
• Parties: JILEK v. ZAHL.
• Court: Wisconsin Supreme Court

162 Wis. 157

155 N.W. 909

JILEK

v.ZAHL.

Supreme Court of Wisconsin.

Jan. 11, 1916.

Appeal from Municipal Court of Langlade County; T. W. Hogan, Judge.

Action by Joseph Jilek against W. J. Zahl. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Action to recover $500, being the balance due on the purchase price of an equitable interest in twelve forties of timber land alleged to have been sold by the plaintiff to the defendant by written contract, December 8, 1911. The defendant by answer denied any contract with himself, but alleged that the plaintiff executed to Adelaide Zahl (defendant's wife) a land contract to convey three forties of the lands in question for $650 (of which $150 was paid down), that plaintiff has refused to execute or deliver a conveyance of the same, though said Adelaide has offered and now offers to pay the balance when good title is furnished.

On the trial before a jury it appeared that on October 12, 1909, the plaintiff received a land contract from the trustees of the estate of George Baldwin, deceased, for the conveyance of the twelve forties of land in question for the sum of $4,500; that he went into possession, cut considerable quantities of cedar, paid about $2,500 on the purchase price, and in April, 1911, proposed to one Hayssen, agent of said trustees, that he would assign back his interest in the contract so far as nine of the forties were concerned, if the trustees would deed to him the remaining three forties, and thus close the transaction; that in pursuance of this idea he executed and gave to Hayssen, April 5, 1911, an assignment of the contract as to the nine forties with the name of the grantee in blank; that nothing came of this offer, but Hayssen did not return the assignment to the plaintiff and on the contrary, and without Jilek's knowledge, sold and transferred it to defendant's wife, Adelaide Zahl, acting through her husband, and received in payment the discharge of a debt of $150 which he owed Zahl; that no written assignment was made out, but that Hayssen simply filled in the name of Adelaide Zahl as grantee in the assignment made by the plaintiff and delivered it to Zahl; that in December, 1911, the parties negotiated together concerning the lands, the plaintiff not being aware, as he claims, that Zahl had obtained the Hayssen assignment. Here the stories of the plaintiff and the defendant radically differ. A written contract was made out by Zahl December 8, 1911, by the terms of which Jilek, in consideration of the sum of $650 of which $150 was paid down and the balance was to be paid in two years, agreed to convey three specified forties of the twelve to Adelaide Zahl. The plaintiff claims that the real transaction at this time was that he sold his interest in the entire twelve forties to Zahl himself for which Zahl agreed orally to pay him $650 ($150 being paid down) and to pay the trustees of the Baldwin estate the balance due on the original contract, which was nearly $2,000; that he (the plaintiff) knew nothing of Adelaide Zahl; that Zahl drew the written contract which he (plaintiff), supposing it agreed with oral agreement, signed and returned to Zahl, and which now turns out to be a contract to convey three forties for $650 to Adelaide Zahl. On the other hand, the defendant claims that he was acting on the transaction as the agent of his wife; that he never talked with plaintiff until December, 1911; that he did not try to buy the twelve forties from Jilek, but only the three forties (he having already in his possession the Hayssen assignment covering the other nine forties); that Jilek understood about this assignment; that it was understood that he (Zahl) was to pay three-fourths and Jilek one-fourth of the amount due the Baldwin estate; that he drew the land contract covering the three forties in Jilek's presence, read it to him, and Jilek signed it, and took it away with him, and when he returned said that Hayssen had read it to him and witnessed it. On the contract the...