Jost v. Wolf

Citation110 N.W. 232,130 Wis. 37
PartiesJOST v. WOLF ET AL.
Decision Date04 January 1907
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

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

Action by Matthias Jost, executor of Thomas Suttner, deceased, against George Wolf and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Action to foreclose vendor's lien for $1,660, alleged balance of purchase of certain lands conveyed by plaintiff's testator to the defendant George Wolf on December 16, 1903, by a deed expressing and acknowledging receipt of consideration of $5,500, whereof $3,340 consisted in assumption of mortgage, $600, was concededly paid in cash and the balance is claimed to be due and unpaid, the true consideration being alleged to be $5,600. It appeared that Thomas Suttner, being aged and infirm, owned an 80-acre farm valued by different witnesses at from $4,500 to $5,500, incumbered by a mortgage of $3,340, with some accrued interest; that from time to time he solicited John Suttner, his son, to take over the farm and supply Thomas with a home there, which John for a long time was unwilling to do; Thomas Suttner thereafter proceeded to hold an auction sale of both farm and personal property, and published notices to that effect. Between the publication and the date of sale he again urged John to take the farm and made proposal to him that he should have it upon assumption of the mortgage and payment of only $600, the father thereby being provided with a home during the rest of his life. To this John consented, concurrently with his friend, the other defendant, George Wolf, who undertook to supply him with the $600. It was deemed necessary, however, apparently to preserve faith with the public, that the auction sale should nevertheless be held, and the father, Thomas, insisted that at such sale the land be in form bid off by George Wolf, no matter at what price, that the arrangement with John might be carried out. Wolf accordingly bid at said sale, until the farm was finally struck off to him at $5,600, contrary to his own advice that it be sold to a stranger when it reached $5,300, which he considered the limit of its value. The clerk of the auction had brought with him an ordinary form of a land contract which was filled out in accordance with the terms of the auction sale and signed by Thomas Suttner and George Wolf, and the $600 was paid; the contract providing that the balance should be settled at the time of making deed. After the sale the three parties, Thomas Suttner, John Suttner, and George Wolf, together with a scrivener, met for the purpose of carrying into effect by conveyance the previous contract between Thomas and John. The question was then raised as to how Wolf was to be protected for his advancement of $600, and Thomas Suttner proposed that, instead of deeding directly to John, he would deed the land to Wolf upon Wolf's agreement that John should have the equity therein above the $600. A deed was made accordingly, except for some reason the consideration named was $5,500 instead of $5,600. No explanation of the arrangement was made to the scrivener, further than to tell him that the balance of the purchase price was all settled between the parties. The land contract was delivered up and destroyed. After such conveyance Wolf entered into a written agreement with John Suttner recognizing the latter's equity in the land or any proceeds thereof in excess of the $600 and the first mortgage. Thomas Suttner claimed the land contract to be binding and the balance of the price to be due him. Upon findings to substantially the foregoing effect, and also to the effect that no undue influence or fraud was exercised upon Thomas Suttner, the court held that there was no indebtedness for any portion of purchase price, and entered judgment dismissing the complaint, from which judgment the plaintiff, executor of Thomas Suttner, who died pending the action, appeals.

Siebecker, J., dissenting.

Nash & Nash, for appellant.

J. E. McMullen, for respondents.

DODGE, J. (after stating the facts).

After careful examination of the evidence, consisting largely as it does of testimony of witnesses of greater or less intelligence and fairness, and varying in command of the English language, as also in capacity of expression, we cannot say, with the requisite certainty, that the trial court's findings as to the terms of the contract, or those against fraud and undue influence, are antagonized by that clear preponderance of evidence which alone can justify this court, on appeal, to set them aside. No comment we might make upon the conflicting evidence could add materially to the lucid and highly judicial analysis thereof contained in the opinion filed by the circuit judge. We must, therefore, proceed upon the established existence of the facts so found as a basis for consideration of other questions.

Appellant contends that the trial court erred in receiving and considering any parol evidence, because the land contract made on the day of the auction is the final and conclusive expression of the agreement between the parties. There is some evidence, perhaps, tending to show that the making of this writing was, to the understanding of both parties, such a matter of mere color or form, like the auction which preceded it, that insistence upon it as conclusive would work a fraud, and thus bring the situation within one of the exceptions to the rule against contradicting or modifying a written instrument by parol. Juilliard v. Chaffee, 92 N. Y. 529;Baird v. Baird, 145 N. Y. 659, 663, 40 N. E. 222, 28 L. R. A. 375;Jamestown, etc., v. Allen, 172 N. Y. 291, 303, 64 N. E. 952, 92 Am. St. Rep. 740. Such situation has not, however, been considered by the trial court, or intentionally declared in the findings, and we shall not find necessity to declare ourselves upon it for reasons to be stated. If we concede that the land contract must be taken as the complete and final agreement between plaintiff and Wolf at the time of its signature, it nevertheless constituted no obstacle to the making of a new, different, or substitutionary agreement therafter by mutual consent. Although plaintiff had agreed to sell, and defendant to buy, this land for $5,600, it was perfectly competent for either to release the other entirely or in part, or for both to agree that sale should be made, but at another or different consideration, also that the agreed price might be paid in any manner. Any such subsequent arrangement would constitute a new contract, resting mainly in parol, and therefore provable by all ordinary means of evidence. If, as is found to be the fact. it consisted in readoption of a plan agreed upon or discussed before the written contract, the details of such plan could be proved to throw light upon the terms of the later oral contract, although inadmissible to prove that the written contract did not correctly express the agreement between the parties existing at the time of its execution. Lathrop v. Humble, 120 Wis. 331, 97 N. W. 905. Further, appellant urges that the land contract and the deed executed 10 days later are but part of one transaction, and, read together, constitute complete written expression of its terms not subject to variation by parol. This is, however, merely begging the question of fact whether they were parts of one transaction, or whether another transaction took place after the written land contract and the deed was made in execution of such later contract. This question of fact the trial court has resolved against appellant, and, as we have already said, upon sufficient evidence.

Some contention is made that the recital in the deed of a consideration of $5,500 is conclusive upon defendant and not open to dispute by parol. This contention, if sustained in this case, presents the anomaly that defendant, who did not sign the deed at all, is bound conclusively by a mere recital therein that the deed had been made for a consideration of $5,500, while the grantor, who formally executed the instrument over his seal, is not bound by the solemn avowal that the entire consideration had been paid. The position is supported by but two citations, viz., Powers v. Spaulding, 96 Wis. 487, 71 N. W. 891, and Desmond v. McNamara, 107 Wis. 126, 82 N. W. 701, neither of which cases dealt with attempted explanation of a mere recital of consideration, but with express contractual stipulations on the part of grantees embodied in deeds accepted by them. In the first case the attempt was to prove that an express written agreement to pay all cost of certain improvements was limited by parol to a fixed amount; in the second, to show a parol agreement that the grantor should pay a certain mortgage in contradiction of express stipulation in the deed that grantee should assume it....

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27 cases
  • State ex rel. Herman v. Wilson
    • United States
    • Arizona Court of Appeals
    • 6 Diciembre 1966
    ...no case which goes so far as to permit the testimony elicited here. In Loganbill, our court quoted with approval from Jost v. Wolf, 130 Wis. 37, 110 N.W. 232 (1907), in part, as 'Of course deeds vary in form, And some contain more or less expression of the contractual undertaking of one or ......
  • Sutton v. Sutton
    • United States
    • Arkansas Supreme Court
    • 1 Diciembre 1919
    ...Am. St. 894; 81 N.W. 645; 99 Id. 128; 105 Am. St. 1039; 7 Ky. Law Rep. 441; 8 Id. 640; 2 S.W. 546; 25 L. R. A. (N. S.) 1197; 42 S.E. 279; 110 N.W. 232. See also 134 Ill.App. 47 Tex. Civ. App. 619; 115 S.W. 830; 118 Id. 842. Evidence is admissible to show an agreement to support the grantor ......
  • Townsend v. Schaden
    • United States
    • Missouri Supreme Court
    • 5 Julio 1918
    ...Muir v. Gregory, 168 F. 641; Hess v. Hartwig, 83 Kan. 592; Marsh v. Fuller, 18 N.H. 360; In Re Palmer's Estate, 102 N.Y.S. 236; Jast v. Wolf, 130 Wis. 37; v. Vary, 40 Ala. 421; Sparling v. Smeltzer, 133 Mich. 454. (4) The donor may hold the subject of the gift, constructively deliver the pr......
  • Bibelhausen v. Bibelhausen
    • United States
    • Wisconsin Supreme Court
    • 12 Enero 1915
    ...23 Wis. 519;Morgan v. South Milwaukee Lake View Co., 97 Wis. 275, 72 N. W. 872;Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054;Jost v. Wolf, 130 Wis. 37, 110 N. W. 232;Illinois Steel Co. v. Paczocha, 139 Wis. 23, 119 N. W. 550. Thus concisely the rule is stated in Just v. Wolf: “The recital t......
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