Levin v. Grant

• Decision Date: 07 October 1941
• Citation: 238 Wis. 537,300 N.W. 169
• Parties: LEVIN et al. v. GRANT et al.
• Court: Wisconsin Supreme Court

238 Wis. 537

300 N.W. 169

LEVIN et al.

v.GRANT et al.

Supreme Court of Wisconsin.

Oct. 7, 1941.

Appeal from Circuit Court, Milwaukee County; Charles L. Aarons, Judge.

On rehearing.-[Editorial Statement.]

Former mandate withdrawn.

For prior opinion, see298 N.W. 63.

Corrigan & Backus, of Milwaukee, for appellants.

Harry J. Weisfeldt, Benjamin Poss, and Jos. P. Brazy, all of Milwaukee, for respondents.

FOWLER, Justice.

[1] A motion for rehearing was granted and the case reargued because it appeared from the brief of the respondent on the motion that the court had based its reversal on the proposition that a court of equity will not relieve from a forfeiture resulting from breach of a condition precedent, unmindful that the court had previously ruled in Gates v. Parmly, 93 Wis. 294, 66 N.W. 253, 67 N.W. 739, that equity will relieve from a forfeiture resulting from breach of such a condition when the contract comprising the condition is one to secure the payment of money.From the original opinion reported in 298 N.W. 63, it appears that the stipulation here involved, while a contract containing a condition precedent breached, is clearly one to secure the payment of money.

Gates v. Parmly, supra, was not cited by either counsel in the briefs originally filed.Nor is the case cited to the point stated in Callaghan's Wisconsin Digest, to which the writer resorted to ascertain whether the court had ever passed upon the point.The case expressly declared as above stated upon deliberate consideration of the point, and we consider that we should adhere to the rule there stated.This requires us to reconsider what determination should be made of the case and to rule upon a contention of the appellants not discussed in the original opinion.

[2]The appellants contend that the stipulation is a contract to be enforced according to its terms entirely independent of the original judgment and that it is immaterial that under the rule of the St. Joseph's Hospital Case, St. Joseph's Hospital of Franciscan Sisters v. Maternity Hospital & Dispensary Ass'n, 224 Wis. 422, 272 N.W. 669, 273 N.W. 791, discussed in the original case, the vendee in strict foreclosure has a right under that decision to relief in equity after the period of redemption fixed by the judgment has expired.The stipulation here involved is one made in the course of judicial proceedings, within the rule of Southern Colonization Co. v. Howard Cole & Co., 185 Wis. 469, 201 N.W. 817, andThayer v. Federal Life Ins. Co., 217 Wis. 282, 258 N.W. 849, although made after rather than before entry of judgment.That appellants' counsel conceived it as such...