Nelson v. Goddard & Co.

• Decision Date: 11 January 1916
• Citation: 155 N.W. 943,162 Wis. 66
• Court: Wisconsin Supreme Court
• Parties: NELSON v. GODDARD & CO.

162 Wis. 66

155 N.W. 943

NELSON

v.GODDARD & CO.

Supreme Court of Wisconsin.

Jan. 11, 1916.

Appeal from Circuit Court, Wood County; Byron B. Park, Judge.

Action by F. N. Nelson against Goddard & Company. Judgment for plaintiff, and defendant appeals. Reversed.

On April 13, 1914, the plaintiff and defendant entered into a written agreement, whereby the defendant leased its cranberry marsh to the plaintiff. Among other things, the agreement provided:

“That said second party (plaintiff) will at the expiration of this agreement, or upon receiving notice of sale of the premises, promptly vacate and give up said premises. * * *

In consideration of all the above, said first party (defendant) hereby agrees to lease or rent to said second party the above-described premises and all personal property thereon from the date hereof to December 1, 1913, unless this agreement shall be previously terminated by sale, with the privilege of using for the proper care and operation of the marsh all buildings, fixtures, grounds, machinery, implements, fuel and lumber now on the premises.

However, it is expressly understood and agreed that nothing in this agreement shall hinder, prevent or interfere with the sale of the premises, and in case of sale during the life of this contract the said first party agrees to use their best efforts to prevail upon the purchaser to allow the second party thereto to enjoy all the conditions of this contract the same as if no sale had been made; but if this is not agreeable to the purchaser, said first party hereby agrees to pay to the second party the sum of forty dollars per month from date hereof to the day of sale, or if sale is made after July 15, 1913, then said first party is to pay said second party a sum equal to the net profits that would have accrued to said second party if no sale had been made, such sum to be agreed upon by the parties to this contract, or in case of disagreement, to be estimated by Andrew Bissig.”

The complaint alleged that on or about May 13, 1913, defendant notified the plaintiff that said marsh had been sold and instructed plaintiff to deliver the possession thereof to one A. J. Amundson, to whom the sale had been made; that, relying upon such representations, plaintiff delivered possession of the marsh to said Amundson and received from the defendant $33 for his damages under the terms of the agreement; that later plaintiff discovered that in truth and in fact the marsh had not been sold and that Amundson took possession merely as a lessee with an option to purchase in the future if he so desired; that thereafter plaintiff demanded compensation of the plaintiff according to the terms of the agreement, which compensation defendant refused to pay. Plaintiff further alleges that the net profits that would have accrued to him if no sale had been made would amount under the contract to $1,500, and this action is brought to recover the sum alleged to have been lost. The answer put in issue all the material allegations of the complaint. The jury returned the following special verdict:

“Question 1. Was there a sale of the Hancock marsh made to Albert J. Amundson in May, 1913? Answer: No.

Question 2. What were the net profits that would have accrued to the plaintiff from the possession of the Hancock marsh to the end of his lease in December, 1913? Answer: $1,362.

Question 3. Did the defendant make any misrepresentations of material facts upon which the plaintiff did rightly rely which induced the plaintiff to surrender of the Hancock marsh? Answer: Yes.”

The court held that the damages awarded by the jury were excessive and should be reduced to $1,000 or the verdict set aside and a new trial ordered, and plaintiff accepted judgment for $1,000. From such judgment defendant appeals.J. E. Higbee, of La Crosse, for appellant.

Goggins & Brazeau, of Grand Rapids, for respondent.

BARNES, J. (after stating the facts as above).

Four questions are involved on this appeal: (1) Was there a sale to Amundson? (2) Did plaintiff voluntarily surrender the possession of the premises? (3) Did the court properly instruct the jury as to the rule of damages that should be applied? And (4) are the damages recovered excessive?

[1] In form the contract between Amundson and the defendant is a lease, containing an option under which the lessee may purchase the premises at a specified price within a prescribed period of time. If the option was taken advantage of, the sum paid for rent was to apply as a payment on the purchase price. It is not seriously contended that this written instrument was a contract of sale, and we are satisfied that it was not. The appellant does earnestly contend, however, that this instrument does not express the true intent and meaning of the parties, and that it might and did show by parol the facts and circumstances surrounding the transaction and what actually transpired between the parties before and after the document was signed, and that the real question in the case is: Was there in fact a sale? The respondent claims that the parol evidence offered was incompetent, and that if properly admitted it tended to show that the written agreement embodied the intention of the parties. The weight of authority seems to be to the effect that, where a controversy arises between a party to a contract and a third person, neither is concluded by the contract but may show what the actual transaction was. In the view we take of the case, the matter of the admissibility of the parol testimony is not important, and hence we do not pass upon the question. As we read the testimony of Gaynor, the attorney who drew the lease, and of Amundson, the lessee, the writing expressed the intention finally arrived at by the parties, and, if so, there was abundant evidence to support the answer of the jury to the first question in the special verdict. There is no doubt that Amundson desired to buy, and that defendant desired to sell. The price was also agreed upon at $10,000. But Amundson could pay down only $500, and defendant was unwilling to make a binding contract of sale on so small a payment, evidently desiring to avoid the loss and expense of foreclosure in case of default. So a lease with an option to purchase was decided upon. By this arrangement Amundson might buy if he could raise the necessary money, and, if he could not, his rights in the premises would terminate at the expiration of the lease and defendant would not be...