Peper v. Eveland
| Decision Date | 09 March 1937 |
| Citation | 224 Wis. 267,272 N.W. 11 |
| Parties | PEPER v. EVELAND et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the County Court of Polk County; Carl M. Lynn, Judge.
Modified and affirmed in part; reversed in part.
Action brought by William Peper against the defendants Jesse Eveland, A. D. Mattson and his wife, and the State Bank of Centuria, on a complaint for the specific performance of a contract made between the plaintiff and Eveland, and the setting aside of subsequent conveyances of the property by a deed to A. D. Mattson, and by a mortgage to the defendant bank. The court sustained a demurrer filed by the defendants to the original complaint, but denied the defendants' motion to strike out an amended complaint, and the defendants in answer thereto set forth denials and allegations upon which they prayed for the dismissal of the action. Upon a trial on the merits the court made findings of fact and conclusions of law upon which it entered judgment in favor of the plaintiff for specific performance of his contract and for the vacation of the deed to A. D. Mattson and his mortgage to the bank, and also the recovery from the defendants of damages sustained by the plaintiff by reason of Eveland's failure to duly perform. The defendants appealed from that judgment.E. Nelton, of Balsam Lake, Doar & Knowles, of New Richmond, and Howard D. Blanding, of St. Croix Falls, for appellants.
Fuller & Lampson, of Cumberland, for respondent.
In connection with their appeal, the defendants assigned error in respect to a ruling by the court which denied their motion to strike out an amended complaint filed within the time allowed by an order sustaining a demurrer to a prior complaint. It suffices to note that we find no prejudicial error in that ruling.
The plaintiff bases his cause of action for specific performance upon an instrument which reads as follows:
“Application to Purchase
“August 15th, 1934.
“The undersigned hereby agrees to purchase from Jesse Eveland, one of the heirs of the J. A. Eveland estate, the following described land in Polk County, Wisconsin.
“The north Half of the Northeast Quarter of Section Twenty-seven, and the South half of the northwest quarter of section Twenty-six, in Township thirty-five, North, Range Eighteen west, known as the J. A. Eveland farm.
“And the undersigned agrees to pay the sum of Thirty-seven Hundred dollars in full therefore, which amount is to be paid as follows:
“This application also includes all the personal property belonging to the estate of J. A. Eveland including all crops belonging to the said estate and whatever cash that is on hand as of this date.
+------------------------+
¦Pledge payment ¦$ 50.00 ¦
+---------------+--------¦
¦Cash payment ¦3650.00 ¦
+---------------+--------¦
¦ ¦$3700.00¦
+------------------------+
That instrument was subscribed in triplicate by the plaintiff above the designation “Purchaser” and by the defendant Eveland above the designation “Owner,” on August 15, 1934; and their execution thereof is evidenced by a notarial acknowledgment, which appears thereon after the signature to the escrow provision on behalf of the defendant bank by Oscar W. Peterson, its cashier. A signed copy thereof was delivered to each of the parties thereto, and the third copy, together with the pledge payment of $50, which was made by the plaintiff, as therein provided, was delivered in escrow to the bank.
The evidence received on the trial warranted the court's findings to the following effect, in respect to the subject-matter of that instrument and the acts or conduct of the parties in performance thereof or in relation thereto: The land described therein was a farm, which was owned in 1934 by the defendant Eveland and other heirs of James Eveland, deceased, whose estate was in the process of administration, which necessitated selling the estate's property in order to pay its debts and cost of administration. The bank was a creditor of the estate in the sum of $735.14 and of Eveland in the sum of $302.04, and the latter and Peterson, as cashier of the bank, were endeavoring to effect a sale of the property. Their efforts resulted in the plaintiff and Eveland entering into and executing the instrument of August 15, 1934. To assist the plaintiff in raising the $3,650 required as the balance of the agreed purchase price of $3,700, the loan committee of the bank authorized a loan of $2,000 on a note to be secured by the plaintiff's mortgage on the land in question, and also a loan of $500 on his unsecured note. By September 29, 1934, he had arranged, and it was understood between him and Peterson and Eveland, that the bank considered him entitled to a credit of $3,679.44 at the bank on account of the following amounts for use in making his payment of the purchase price balance of $3,650, to wit: $2,000 on his note and mortgage and $500 on his unsecured note to the bank; $1,089.44 on deposit in his checking account; $25 on a bank deposit by the Eveland estate; and $65 on a trustee's certificate issued to that estate for its interest in securities segregated under the bank's stabilization agreement. The last two items were considered part of the estate's personal property which the plaintiff was to acquire under the agreement of August 15, 1934. Consequently, Peterson, on September 29, 1934, informed the plaintiff that he could then settle for the purchase price under that agreement, and Peterson wrote a check for $3,650, payable to the order of the bank, with a notation thereon, “Balance in full for purchase of 160 A. Eveland,” and had the plaintiff sign and deliver it to the bank, which accepted it for use, together with the $50 escrow payment, in the payment of the agreed purchase price. Then Peterson told the plaintiff: And plaintiff asked whether Eveland could furnish an abstract within sixty days. Thereupon Peterson showed the plaintiff a warranty deed to the land, which was executed and left at the bank by Jesse Eveland and wife on September 19, 1934.
Pursuant to an understanding on August 15, 1934, between Eveland and the plaintiff that the latter could fill the silo on the land with the estate's share of the corn growing thereon, as soon as Eveland had obtained deeds from the other heirs of the estate, and a statement by Eveland to the plaintiff on September 15, 1934, that “the farm is yours, and you can go ahead and do anything you want to,” the latter filled the silo and did some plowing, sowing, repairing of fences, and was otherwise in possession of a part of the fields until October 16, 1934. Meanwhile, on October 5, 1934, Eveland and Peterson called on Henry C. Oakey, an attorney and abstractor, with an abstract of title and also deeds from all of the estate's heirs, which had been received at the bank, and the instrument of August 15, 1934. Peterson and Eveland informed Oakey that it had been agreed that when the abstract was extended to date the deal with the plaintiff could be closed by the bank cashing his check for $3,650, out of which it should hold $200 to obtain the discharge of a judgment against Jesse Eveland and $30 for the abstract extension, and send the Eveland heirs their shares the next day. Prior to October 5, 1934, Peterson had asked Oakey whether an indebtedness by Jesse Eveland to the Eveland estate for $110, owing as rent during the administration thereof, was personal property included in the property of the estate which the plaintiff was to acquire under the agreement of August 15, 1934. On October 11, 1934, Oakey sent to Peterson a copy of his written report to the plaintiff regarding his examination of the abstract and defects in the title. In that report Oakey stated that the provision “personal property belonging to the estate of J. A. Eveland” in the agreement of August 15, 1934, would include the $110 debt owing by the defendant Eveland to the estate; but Oakey suggested that the plaintiff sacrifice some of that to enable Eveland to clear the title and close the deal. Peterson showed that report to Eveland, who had discussed the $110 debt with the plaintiff during their negotiations prior to August 15, 1934, but who now claimed that he did not know that the plaintiff thought that item was included as personal property of the estate under the contract. On October 16, 1934, Eveland told the plaintiff that the sixty days mentioned in their agreement had expired and that he would not sell the farm to the plaintiff. On the evening of that day Eveland showed a copy of the agreement of August 15, 1934, to A. D. Mattson and offered and succeeded in selling the land to him at a purchase price of $3,750, without including any personal property. On October 17, 1934, A. D. Mattson, upon inquiring at the bank and also...
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