Maxon v. Gates

• Decision Date: 29 November 1901
• Parties: MAXON v. GATES.
• Court: Wisconsin Supreme Court

112 Wis. 196

88 N.W. 54

MAXON

v.GATES.

Supreme Court of Wisconsin.

Nov. 29, 1901.

Appeal from circuit court, Ashland county; W. C. Silverthorn, Judge.

Action by Glenway Maxon against James L. Gates. From an order setting aside a special verdict and granting a new trial, defendant appeals. Affirmed.Rublee A. Cole, for appellant.

Tompkins & Tompkins and Glenway Maxon, for respondent.

CASSODAY, C. J.

This is an action to recover damages for the breach of a contract executed by the plaintiff and defendant under their hands and seals January 8, 1900, wherein and whereby the defendant covenanted and agreed with the plaintiff that he would within a reasonable time cause to be conveyed to the plaintiff, by good and sufficient quitclaim deed, executed and acknowledged by himself and wife, and the International Land Company, and the Ashland County Land Company, the lands described in Ashland and Iron counties, and at the same time transfer and assign to the plaintiff all the tax certificates thereon held by him or either of the companies; which instrument contained other covenants and agreements and representations on the part of the defendant unnecessary here to mention. And the plaintiff therein and thereby agreed to pay to the defendant and the companies named $3,000 “upon the performance” of such contract by the defendant, to wit, “upon the day of the execution of the deeds of conveyances and transfers and delivery of the tax certificates” mentioned, $2,000, and the balance to be secured by a mortgage back from the plaintiff to the defendant. The complaint alleges, among other things, in effect, that in pursuance of such contract the plaintiff entered into a contract in writing for the sale and conveyance of a portion of such lands January 13, 1900, to one Cover, but that February 23, 1900, he was obliged to abrogate and annul such contract by reason of the “failure, neglect, and refusal” of the defendant to perform his contract with the plaintiff, to his great damage; and that the plaintiff fully performed on his part. The defendant answered by way of admissions, denials, and counter allegations. At the close of the trial of the issues thus formed, the jury returned a special verdict to the effect: (1) That the plaintiff and defendant executed the written contract set out in the complaint; (2) that the plaintiff and defendant, January 16, 1900, at the office of James L. Gates, in Milwaukee, mutually agreed that the writing dated January 8, 1900, be abrogated and annulled; (3) that the Ashland County Land Company, on January 8, 1900, did not have a good and merchantable title to the lands described in Exhibit D in the complaint; (4) that the plaintiff and defendant both knew at that time that the Ashland County Land Company did not have a good and merchantable title to said lands; (5) that the plaintiff did not, on January 8, 1900, or at any other time prior to the commencement of this action, tender to the defendant $2,000; (6) that the plaintiff was not ready and willing at all times prior to the commencement of this action to perform the conditions of the contract on his part; (7) that the plaintiff, on or about February 23, 1900, and prior to the commencement of this action, did demand of the defendant a conveyance of the lands described in the complaint; (8) that the plaintiff did not at the time of such demand offer to perform all the conditions of the contract on his part; (9) that the defendant did not, prior to the commencement of this action, refuse to convey to the plaintiff the lands described in the complaint; (10) that the defendant did not, prior to the commencement of this action, and after January 8, 1900, knowingly and intentionally put it out of his power to convey the lands in Exhibits C and D, in question, to the plaintiff; (11) that the plaintiff did incur expenses in the examination of the title to the lands between January 8, 1900, and the commencement of this action; (12) that the market value in February, 1900, of the lands described in Exhibit D, in this complaint, exclusive of timber thereon, was $1.50 per acre; (13) that the market value in February, 1900, of the interest in the lands described in Exhibits A, B, and C, in the complaint, which the defendant agreed to convey or cause to be conveyed to the plaintiff was 10 cents per acre. Thereupon the defendant moved the court for judgment in his favor upon the special verdict so returned, and the plaintiff moved the court upon the minutes of the judge to change the answers of the jury to questions 2, 5, 6, 8, 9, 10, 12, and 13, and for judgment in his favor upon the verdict when so corrected; and that, in case the foregoing motion of the plaintiff should be denied, then that the special verdict of the jury be set aside, and a new trial granted upon the minutes of the judge before whom the issues were tried, upon the exceptions taken on the trial by the plaintiff, and because the verdict was contrary to law and contrary to the evidence and inconsistent and perverse, and because of inadequate damages. The court thereupon orally announced that the motion of the defendant was denied, and ordered that the special verdict be set aside, and that a new trial be had in this case on condition of the payment of costs, but as to the amount of costs the court reserved its decision. Two days afterwards, the court, in effect, ordered that the motion of the defendant be, and thereby was, denied, and the motion of the plaintiff was thereby allowed, and the special verdict therein was set aside, and a new trial was thereby granted,--the defendant having refused to accept any costs upon the motion,--relying simply on his right to judgment on the verdict, From such order the defendant brings this appeal.

1. Error is assigned because the court refused to sustain the demurrer ore tenus. This assignment of error is manifestly based upon...