Mulligan v. Albertz

• Decision Date: 11 April 1899
• Citation: 78 N.W. 1093,103 Wis. 140
• Parties: MULLIGAN v. ALBERTZ ET UX.
• Court: Wisconsin Supreme Court

103 Wis. 140

78 N.W. 1093

MULLIGAN

v.ALBERTZ ET UX.

Supreme Court of Wisconsin.

April 11, 1899.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Suit by Dennis D. Mulligan against Henry W. Albertz and wife. There was a decree for plaintiff, and defendants appeal. Reversed.

Action for specific performance of contracts to convey lands. Henry W. Albertz was the owner of a farm of 220 acres near Oconomowoc, in Waukesha county. Plaintiff was the owner of a saloon building and contents in the city of Waukesha. On August 25, 1897, Albertz and wife made a written contract in which they agreed to convey to plaintiff their said farm and certain personal property for the sum of $22,000, to be paid as follows: $14,000 by a conveyance to them of plaintiff's saloon property, and $8,000 in cash, “on or before ten days after date.” At the same time plaintiff and wife made a written contract in which they agreed to convey the saloon property, and a stock of liquors described, to Albertz for the sum of $14,000, to be paid as follows: “One dollar at the execution and delivery hereof, and the balance to be paid by the execution and delivery by the parties of the second part to the party of the first part of his farm in sections 35 and 36, in the town of Oconomowoc, pursuant to the terms of a certain contract by and between the parties hereto of this date, on or before ten days after this date.” Both contracts contained a clause that “it is distinctly agreed and understood, by and between the parties hereto, that if the said party of the second part should fail to make any of the payments of purchase money above specified, at the time and in the manner above specified, in such case this agreement shall be henceforth utterly void,” etc. Neither party made or tendered performance of the contract within the time specified. Plaintiff thereafter commenced this action. In his complaint he sets up the two contracts, and alleged the performance of the conditions therein on his part, and the tender of the deed and money mentioned, and the refusal of defendants to accept the same or to execute the deed of their farm. The defendants answered separately. The defendant husband, among other things, alleged that plaintiff fraudulently represented his property to be worth the sum of $14,000, when it was not; that the defendant came from insane stock; that his mind was weak and unsettled, and easily misled and deceived; that he was given to the excessive use of intoxicating liquors; that he was wholly unfit and incompetent to enter into said agreements; that his farm was heavily incumbered, to plaintiff's knowledge; and that being unable, within the 10 days, to clear the title, he was unable to carry out the contract. The answer of the wife covers substantially the same ground. A trial was had, and the court decided that the plaintiff was entitled to specific performance. The testimony not being clear as to the amount and character of the liens upon defendants' farm, he then made an order of reference to ascertain the facts. The referee reported that there were mortgages and liens against the property to the amount of $13,572.73, and a life annuity of $75 for the support of an insane brother of the defendant Henry. Upon the coming in of this report, the court made findings to the effect that the contracts in question had been duly executed and delivered; that the plaintiff had performed the conditions on his part; that he had tendered a deed of his premises, and also stood ready to make the cash payment of $8,000; that defendants refused to carry out the contract on their part without cause or justification; that plaintiff was ready to deliver his deed and pay the money within the 10 days provided in the contract, but that it was never demanded; that time was not of the essence of the contracts or made so by express agreement, but performance was delayed by defendants by one excuse and another purposely, and they led the plaintiff to believe they would perform until after the 10 days had expired; that plaintiff made no fraudulent representations as to the value of his property; that the defendant Henry was not incapacitated to make the contract; that there was no mistake or misrepresentation as to the value of the property, but that the values placed in the contract were first suggested by Albertz; that the $8,000 cash payment was deemed to be the difference between the values of their respective properties; that all of the liens and mortgages were due and payable except one mortgage of $3,140, and that suit had been commenced to foreclose all of the mortgages except one. As conclusions of law, the court found plaintiff entitled to specific performance; that, upon payment of the liens and mortgages mentioned, he was entitled to a lien back on the premises he was to convey for $5,572.73, and interest from June 24, 1898, and to secure the payment of the $75 annually mentioned. A judgment entered pursuant to these findings is sought to be reviewed on this appeal.John A. Kelly and C. H. Van Alstine, for appellants.

Ryan & Merton, for respondent.

BARDEEN, J. (after stating the facts).

An action for the specific performance of a contract is an application to the sound discretion of the court. It does not come as a matter of course. The jurisdiction to compel it is not compulsory. “A court of equity must be satisfied that the claim for a deed is fair and just and reasonable, and the contract equal in all its parts, and founded on an adequate consideration, before it will interpose with this extraordinary assistance.” Williams v. Williams, 50 Wis. 311, 6 N. W. 814;Combs v. Scott, 76 Wis. 662, 45 N. W. 532;Docter v. Furch, 91 Wis. 464, 65 N. W. 161;Dewey v. Land Co., 98 Wis. 83, 73 N. W. 565. But this discretion is not one to be exercised at the mere will and pleasure of the judge. It must be a judicial discretion, controlled and governed by the principles and rules of equity. Its exercise therefore depends upon the existence of a multitude of facts, events, and incidents surrounding the transaction, from which the court is to determine the superiority of the equitable over the legal right. When these conditions and circumstances are clearly proven, and are such as equity regards as essential to the administration of its peculiar modes of relief, specific performance will be granted. These conditions and incidents are thus stated in Pom. Cont. § 38: “The contract must be certain, unambiguous, mutual, and upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation or misapprehension, fraud or mistake, imposition or surprise; not an unconscionable or hard bargain; and its performance not oppressive upon the defendant. Finally, it must be capable of specific performance through a decree of the court.” A great multitude of cases have arisen in which these principles have been applied, as will be seen by reference to the note to this section. The most important of...