Kuester v. Rowlands
| Decision Date | 10 June 1947 |
| Citation | 26 N.W.2d 639,250 Wis. 277 |
| Parties | KUESTER v. ROWLANDS et ux. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the County Court of Waukesha County; Allen D. Young, Judge.
Affirmed.
Action by Theodore Kuester against John A. Rowlands and his wife, for specific performance of a contract to convey land. From a judgment entered July 10, 1946, the defendants appeal. The facts are stated in the opinion. Edwin B. Stillman, of Waukesha, for appellants.
Lowry & Hunter and Bryan Ardis Frame, all of Waukesha, for respondent.
The plaintiff Kuester by writing signed by him offered to purchase of Rowlands his property ‘particularly described as part of sec. 13, Town of Genesee, county of Waukesha’ at a specified price. The offer was accepted by Rowlands and his wife both signing the written offer. The terms of the proposed purchase were all particularly specified and the price and payments were definitely fixed: $500 at time of signing; $500 next day, both of which sums were paid; $14,750 on furnishing of an abstract of title and tender of a warranty deed. Rowlands on demand refused to furnish the abstract of title and deed. Kuester sued for specific performance alleging the holding of $14,750 in readiness to make the cash payment on such tender being made.
The complaint described the land to be conveyed as ‘all that part of the following described property lying south of county trunk highway D,’ which was definitely described and as comprising two tracts, one of eighty acres more or less and the other of thirty acres more or less both of which in fact constituted a part of sec. 13 first above described. The answer admits the defendants were the owners in fee of the land described in the complaint, but ‘denies that any valid and lawful agreement for the sale’ of the land was made; admits they did not present an abstract of title or warranty deed to plaintiff; and denies the holding of the $14,750 by Kuester to make final payment.
The case was tried to the court on July 10, 1946. The court found that a writing was signed by the parties in terms as first above described; that the defendants owned a farm situated in said section 13, consisting of contiguous land, six acres of which was on the north and 104 acres of which was on the south side of a highway known as County Trunk D; that they owned no land in said town other than their said farm; that the writing signed by the parties was intended by them to include the part of said farm lying south of County Trunk D consisting of 104 acres and was intended not to include the six acres lying across the road from the 104 acres. This fact was admitted by the testimony of the defendants, and none of the evidentiary facts are in dispute.
The defendants claim that because the writing does not show on its face that it was intended to cover only the 104 acres it is void under the statute of frauds, sec. 240.08, Stats., which reads as follows:
‘Every contract * * * for the sale of any lands * * * shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.’
The contention of the defendants is manifestly incorrect. This court states the rule applicable in Wisconsin Central Ry. Co. v. Schug, 155 Wis. 563, 565, 145 N.W. 177, 178:
‘A land contract, which does not specifically describe the land to be conveyed, but refers to it in such terms that by the aid of the facts and circumstances surrounding the parties at the time the court can with reasonable certainty determine the land which is to be conveyed, satisfies the statute of frauds in this regard, and may be enforced.’
See Spence v. Frantz, 195 Wis. 69, 217 N.W. 700; Heller v. Baird, 191 Wis. 288, 210 N.W. 680;Douglas v. Vorpahl, 167 Wis. 244, 166 N.W. 833;Inglis v. Fohey, 136 Wis. 28, 116 N.W. 857.
The defendants cite Durkin v. Machesky, 177 Wis. 595, 188 N.W. 97, as holding the instant description insufficient to comply with the statute. But the effect of the opinion in that case is to the contrary. It says, 177 Wis. at page 599, 188 N.W. at page 99:
‘If the writing had contained in addition to that used such words as ‘my property,’ * * * and if defendant had owned no other property * * * a differentsituation would be present, and the rule, ‘that is certain which can be made certain,’ might be invoked.'
The instant writing contains the words ‘my property’ and the defendants owned no other property than the one farm constituting a part of sec. 13 mentioned in the writing.
The instant writing by its terms includes the six acres across the road from the 104 acres. It is therefore a valid contract on its face. The contention of the defendants is based entirely on the erroneous proposition that the contract is void. Where the contract is valid it constitutes basis for specific performance of the tract intended to be included and may be reformed to describe the tract. The rule is stated in 45 Am.Jur. 593, sec. 19, as follows:
‘* * * generally, a memorandum sufficient to comply with the statute (of frauds) may be reformed to state the true agreement of the parties, subject to the limitation in some jurisdictions precluding reformation so as to enlarge the scope of the instrument.’
See also Id. sec. 17. If the attempt here were to reform the contract to include six acres not within the description, we would have a situation in which reformation might not lie, as to which we need not and do not express an opinion.
The plaintiff in his complaint only asked for specific performance as to the 104 acres. Had he in the first instance asked for reformation of the instrument to specifically describe the 104 acres and for specific performance of it as reformed, he would under the rule above stated have been entitled to both reformation and performance. After the trial of the case the court on plaintiff's application ordered that the defendants show cause ‘why the pleadings should not be amended to conform to the proofs by amending the prayer of the complaint to ask for reformation of the contract, Exhibit 2, on the basis of mutual mistake, the description to be corrected by confining the land involved to that portion of the defendants' property’ lying south of County Trunk D. The defendants objected to the amendment, on the ground that ‘objections were properly interposed to all oral evidence,’ and the court received the evidence...
To continue reading
Request your trial
-
Bentzler v. Braun
... ... Grady v. Hartford Steam Boiler Insp. & Ins. Co. (1954), 265 Wis. 610, 617, 62 N.W.2d 399; Kuester v. Rowlands ... Page 634 ... (1947), 250 Wis. 277, 282, 26 N.W.2d 639." ... The trial court did not in this case abuse its ... ...
-
Prezioso v. Aerts
...determine the land which is to be conveyed....’ ” Anderson, 306 Wis.2d 686, ¶ 30, 743 N.W.2d 492 (quoting Kuester v. Rowlands, 250 Wis. 277, 279, 26 N.W.2d 639 (1947) ). Accordingly, parol evidence is generally permissible to establish identity. See Conway, 34 Wis.2d at 85, 148 N.W.2d 721.¶......
-
Anderson v. Quinn
...the parties at the time the court can with reasonable certainty determine the land which is to be conveyed. ..." Kuester v. Rowlands, 250 Wis. 277, 279, 26 N.W.2d 639 (1947) (citations omitted). It does not, however, necessarily require a legal description. In Kuester, the conveyance descri......
-
D. R. W. Corp. v. Cordes
...Quarberg (1973), 56 Wis.2d 581, 592, 203 N.W.2d 45, citing Herchelroth v. Mahar (1967), 36 Wis.2d 140, 153 N.W.2d 6; Kuester v. Rowlands (1947), 250 Wis. 277, 26 N.W.2d 639.5 Widemshek v. Fale (1962), 17 Wis.2d 337, 340, 117 N.W.2d 275. See also: Williams v. Rank & Son Buick, Inc. (1969), 4......