Ladegaard v. Connell

• Decision Date: 11 October 1938
• Citation: 281 N.W. 656,229 Wis. 36
• Parties: LADEGAARD v. CONNELL et al.
• Court: Wisconsin Supreme Court

229 Wis. 36

281 N.W. 656

LADEGAARD

v.CONNELL et al.

Supreme Court of Wisconsin.

Oct. 11, 1938.

Appeal from a judgment of the Circuit Court for Waukesha County; C. M. Davison, Judge.

Affirmed.

Action brought by the plaintiff Andrew Ladegaard, as the vendor under a contract to sell land, against the defendants, Society of the Divine Word, a religious corporation, and Louis M. Proesel, as the vendees, and S. D. Connell, as the stakeholder of earnest money deposited under the contract, for the recovery of the earnest money and damages on the theory that the vendees breached the contract of purchase to the damage of the plaintiff. The Society in answer to the complaint denied that Proesel had any authority to enter into the contract as its agent, and, as a further answer, it and Proesel alleged that the plaintiff had failed to furnish to the defendants a merchantable title to the land, and also that the execution by Proesel of an alleged supplemental contract had been induced by false and fraudulent representations, which were made by plaintiff's agent to Proesel and upon which he relied, that the plaintiff had good title. Upon a trial on the merits the Court made findings of fact and conclusions of law upon which judgment was entered dismissing the complaint with costs, and directing Connell to return the deposited earnest money to the defendant Society. Plaintiff appealed from that judgment.Geo. W. Taylor, of Kenosha (Matt Taylor, of Kenosha, of counsel), for appellant.

Lockney, Lowry & Hunter, of Waukesha (Joseph Daly, of Chicago, Ill., of counsel), for respondents.

FRITZ, Justice.

[1][2][3] In due time the defendants moved to dismiss the appeal herein for the reason that it had never been perfected by plaintiff's filing a bond for costs as required by sec. 274.11(2) and (3), Stats. 1935. Instead, he had filed a mere undertaking in the execution of which he had not joined, but which was all that was required by sec. 274.15, Stats., prior to the enactment of Ch. 541, Laws 1935. That was a general revisor's bill. Sec. 284 thereof amended subs. 2 of sec. 274.11, Stats.1933, so far as material here, by providing for the service of a bond for costs instead of an undertaking; and sec. 286 thereof amended and renumbered sec. 274.15, Stats.1933, by in substance changing the word “undertaking” to the word “bond”. That was a material change. Although the differences between them are rather technical, a bond is not the same as an undertaking. The latter need not be signed by the principal, as must be done in the case at a bond. 9 C.J. p. 8, sec. 2; 65 C.J. p. 1212, sec. 3. Generally speaking, a bond must be executed under seal (9 C.J. p. 7, sec. 1; 9 C.J. p. 14, sec. 19); but that is not essential to the validity of an undertaking. 65 C.J. p. 1213, sec. 6. However, upon the hearing of the motion to dismiss, the plaintiff tendered and filed a supplemental bond executed by him and acceptable to the defendants. As it is apparent that the appeal was taken in due time and good faith, and that the filing of the undertaking instead of a bond in the first instance was through mistake, the filing of the supplemental bond is hereby permitted under sec. 274.32, Stats. Therefore, the motion to dismiss the appeal is denied.

There is no serious conflict in the evidence in relation to the material issues determined by the Court's findings. That evidence well warrants and establishes the following facts, as found by the Court: The first and principal contract upon which plaintiff relies is dated September 4, 1935. A supplemental contract is dated October 2, 1935. Both purport to have been made between Louis M. Proesel, acting for himself and as agent for the Society of the Divine Word (hereinafter called the Society), as purchasers, and Walter C. Barger, acting as agent for Andrew Ladegaard, the vendor; and the contracts are signed by Proesel and Barger accordingly. The principal contract, so far as here material, provided for the purchase of 911 acres of land for $60,000, of which the purchaser paid $6,000 “as earnest money, to be applied on such purchase when consummated”, and agreed to pay $54,000 “within five days after the title has been examined and found good, or accepted by him, *** provided a good and sufficient general Deed, conveying to said purchaser a good and merchantable title to said premises (subject as aforesaid), shall then be ready for delivery.” The supplemental contract, after recitals as to the execution of the principal contract with Proesel and the Society as parties of the first part therein, the deposit of the $6,000 as earnest money, and the agreement to pay the balance of $56,000 after the title had been accepted and found good, further recited that-“Whereas the title of the said property has been so examined and found good and accepted by the party of the first part, and whereas the ten days, thereafter within which the said party of the first part was to pay the said balance of $56,000.00 has so expired.”

Then it was provided in that contract that, therefore, in consideration of extending for fourteen days the time for the payment of the $56,000, the parties of the first part agree that if that sum is not so paid the $6,000 then on deposit with S. D. Connellshall become the property of Ladegaard, and Connell is authorized to pay that sum to him.

The title to the land, which was to be conveyed to the purchasers under those contracts, was vested in Ladegaard for some time prior to and until January 7, 1935. But on that date an order was duly entered by the County Court of Waukesha County confirming a foreclosure sale of the land to Mahlon D. Miller, the plaintiff and mortgagee in the foreclosure proceedings, in the due course of which the sale by the sheriff had been ordered and held and the property sold, and the sheriff's deed therefor delivered to Miller as the purchaser. On August 2, 1935, at a hearing on Ladegaard's motion to vacate the order of February 27, 1935, confirming the sale, the County Court stated in an opinion that if Barger and Ladegaard would pay $5,000 to the Clerk of the Court and would give a bond, approved by the Court, agreeing to bid on a subsequent sale, if ordered, a sum that would guarantee to Miller all his principal, interest, costs and disbursements and attorneys' fees, that a resale would be ordered; and that the attorney for Ladegaard should prepare an order in accordance with the opinion of the Court. However, no such order was ever prepared by Ladegaard's attorney or signed by the Court; Barger and Ladegaard never paid the $5,000 to the Clerk of the Court; and they never gave a bond as required by the Court's opinion of August 2, 1935, to entitle Ladegaard to have a resale ordered. Although it was provided in the contract of September 4, 1935, that the purchaser agreed to furnish a surety bond “as per the Court's orders as of August 2, 1935”, there was no provision or agreement at any time by Proesel or the Society to pay or advance the $5,000...