Kunz v. Whitney
| Decision Date | 21 May 1918 |
| Parties | KUNZ v. WHITNEY ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.
Action by Peter Kunz against Helen F. Whitney and another. From a judgment of the circuit court reversing a judgment of the civil court and dismissing the complaint, plaintiff appeals. Affirmed.
The plaintiff and appellant, owner of certain real estate in the city of Milwaukee, made a written contract of sale with defendants for such property at the purchase price of $8,000; $100 paid at the time of the signing of the contract, October 12, 1914; $50 or more per month to apply on the principal; interest at 5 per cent. on all deferred payments payable semiannually and to be adjusted annually; the defendants then giving to the plaintiff a note secured by a trust deed on property located in Duluth, Minn., for $1,000 at 6 per cent. payable on or before June 1, 1915; the contract further providing that when said note is paid it shall apply as part of the purchase price, and that when the defendants had paid down $5,000 they were to receive a warranty deed and to give a mortgage for the balance of the purchase price. The contract further contained customary provisions as to the defendants insuring the property and paying taxes thereon, and that in case the defendants should fail or neglect to make any payment provided for in the contract at the time when the same became due and payable in such case the whole of the principal sum then unpaid, together with interest, shall be deemed to have become due and payable. It also provided that if the defendants failed to make any of the payments of purchase money or interest at the times or in the manner specified, or should violate any of the provisions of the contract, the contract might then, at the option of the plaintiff, thenceforth be utterly void and all payments thereon forfeited, subject only to be revived and renewed by the act of the plaintiff or the mutual agreement of the parties.
Plaintiff commenced suit in the civil court for Milwaukee county to recover upon the $1,000 note above specified, together with interest thereon from October 12, 1914. Defendants in answer pleaded, and evidence was received establishing as facts, that prior to the commencement of this action upon the $1,000 note the plaintiff commenced an action against the same defendants in the circuit court for Milwaukee county for a strict foreclosure of the land contract, alleging therein, among other things, the execution and delivery of the identical note herein involved; that a judgment of strict foreclosure upon appropriate findings in such action was made in March, 1916, in which the findings of fact recited that the defendants had failed to pay the $1,000 evidenced by said note, and that, including such $1,000, the defendants were at such time in arrears on said land contract in the sum of $2,105.40; that by such judgment of foreclosure it was provided that the defendants should have 60 days from service of notice of entry of such judgment to pay such sum of $2,105.40, together with interest and costs, and that unless such payment was made the defendants should be foreclosed of all and any right or claim in and to such real property, and that possession thereof should be given to the plaintiff; that such notice of entry of judgment was served upon de...
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...elect to sue for specific performance of the contract; and (c) he may elect to declare the contract at an end. See, also, Kunz v. Whitney, 167 Wis. 446, 167 N. W. 747. There can be no doubt that the election of one of these remedies waives the others. The question in this case is, What cons......
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