Ochiltree v. Kaiser
| Decision Date | 04 June 1963 |
| Citation | 20 Wis.2d 191,121 N.W.2d 890 |
| Parties | Robert K. OCHILTREE, Plaintiff and Appellant, v. Freda W. KAISER, Defedant and Respondent. |
| Court | Wisconsin Supreme Court |
Spohn, Ross, Stevens & Pick, Madison, John P. Santerre, Barron, Thomas D. Zilavy, Madison, of counsel, for appellant.
Doar & Knowles, New Richmond, for respondent.
This case involves two alleged contracts of sale by Mrs. Kaiser to Ochiltree of land and personal property located in Barron county, Wisconsin. One contract relates to the 'Isle of Happy Days,' an island in Red Cedar Lake, and the other to a run-down golf course and other property on the east shore of the lake. Mrs. Kaiser owned the property, all of which excepting the island was subject to a mortgage. At the time the alleged contracts were entered into she lived in Fredericksburg, Virginia. Ochiltree, a contractor residing in Skokie, Illinois, was interested in developing the property for resort purposes, and in August of 1959 went to Fredericksburg to discuss the purchase with Mrs. Kaiser. As a result, Ochiltree drew up two documents entitled 'Bill of Sale' which were signed by Mrs. Kaiser in the presence of two witnesses but not signed by Ochiltree. The first alleged contract provided for an assignment and transfer to Ochiltree in consideration of $50,000 of all Mrs. Kaiser's title and interest to the personal property located on the Isle of Happy Days and the rights of Mrs. Kaiser in an easement across certain lands for the purpose of ingress and egress. A down payment of $6,000 was provided, plus subsequent payments of $3,000 on September 30th of 1960 and 1961 and various subsequent annual payments until the full amount was paid with 6 percent interest. It was also provided $500 of the down payment would be paid as earnest money and the balance upon receipt of a deed from the attorney and a trust agreement.
The second alleged contract recited a consideration of $10 paid and a purchase price of $10,000 to be paid over a period of 9 years in equal annual installments. Mrs. Kaiser transferred personal property located upon real estate, the legal description of which purported to describe various forty acre parcels in section 11, Barron county, totaling over 400 acres of land and to include a golf course and buildings. Timber rights were reserved to Mrs. Kaiser. It was contemplated a survey of the golf course would be made and an attorney at Rice Lake would draft the documents necessary to effect the conveyance of the properties and obtain a release of the golf course property from the mortgagee. Ochiltree gave Mrs. Kaiser a $500 check to cover the earnest money on the island contract and received the keys to the building.
The day following Ochiltree's return to Illinois, Mrs. Kaiser noticed the $500 check contained the incorrect notation of being earnest money for the purchase of both properties and sent the check to the Rice Lake attorney asking him to have it corrected. In October she received a $500 check and also a telephone call from Ochiltree who told her not to cash it. There is a dispute in the testimony whether Mrs. Kaiser was to refrain from cashing the check for a few weeks until Ochiltree completed some jobs or whether he was not only to make the check good at that time but also pay the full $6,000 down payment. There is also dispute whether Mrs. Kaiser received the $10 earnest money on the second contract. Mrs. Kaiser never received any subsequent notification from Ochiltree to cash the check and it never was cashed.
At the time the Rice Lake attorney who was representing both parties sent Mrs. Kaiser the check he also sent the documents he had drafted pertaining to the sale of the island. In November of 1959 a survey of the golf course which was enclosed on three sides by fences and on the fourth by the lake was completed showing it consisted of 56 acres of land and showing the legal description to be different from that contained in the bill of sale. During the balance of 1959 and 1960 there was correspondence between the parties and Ochiltree went on the island and made certain improvements including some electrical work, plumbing and painting to the building on the island, for which he had the contractors agree to forego payment until the sale was completed. These contractors eventually filed liens, totaling in excess of $9,000. In addition, Ochiltree did some work cleaning up and renovating the golf course and cleaning up the island and in improving the beach. Plans for modernizing the property were made. The amount which Ochiltree paid for these services is not clear from the record and the extent to which Mrs. Kaiser knew of the work on the island and the golf course is disputed.
In December 1960 Mrs. Kaiser came to Wisconsin, had the attorney write Ochiltree that if he would pay the sums due at that time she would sign the necessary papers to transfer the property, otherwise she would commence an action to quiet title and foreclose his interest as well as those of the lien claimants. She gave Ochiltree until January 10, 1961, to close the transaction. This date was extended at the request of Ochiltree to February 1, 1961. Although Ochiltree apparently hired a lawyer in Illinois to represent him, nothing was done about the closing, and in April 1961 Mrs. Kaiser started the action to quiet title.
The trial court found there was no meeting of the minds of the parties as to the property involved in the golf course contract. This finding is not against the great weight and clear preponderance of the evidence. While Ochiltree was thinking in terms of a section of land, Mrs. Kaiser contemplated the sale of only the golf course providing she could obtain its release from a mortgage, which release the mortgagee refused to give. Both parties realized the legal description used was not sufficient and a survey was required. The principle that is certain which can be made certain, Inglis v. Fohey (1908), 136 Wis. 28, 116 N.W. 857 does not apply, because even though the legal description of the golf course as bounded by the fences and the lake was ascertained by the survey, Ochiltree claims not only that property but also the rest of section 11 which the survey does not include. ...
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