Pereles v. Milwaukee Cnty.

• Decision Date: 24 October 1916
• Citation: 164 Wis. 208,159 N.W. 719
• Parties: PERELES ET AL. v. MILWAUKEE COUNTY.
• Court: Wisconsin Supreme Court

164 Wis. 208

159 N.W. 719

PERELES ET AL.

v.MILWAUKEE COUNTY.

Supreme Court of Wisconsin.

Oct. 24, 1916.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Nathan Pereles and another, executors, against the County of Milwaukee. From an order sustaining demurrer to the complaint, plaintiffs appeal. Affirmed.Pereles, Strouse & Carter, of Milwaukee (Paul D. Durant, of Milwaukee, of counsel), for appellants.

Winfred C. Zabel, Dist. Atty., William L. Tibbs, Special Asst. Dist. Atty., and Daniel W. Sullivan, Asst. Dist. Atty., all of Milwaukee, for respondent.

ROSENBERRY, J.

The complaint admittedly states a cause of action if the sale contemplated by the parties was by the acre, and does not state facts sufficient to constitute a cause of action if the sale was in gross.

It appears from the complaint that the negotiations were carried on by T. J. Pereles, now deceased. On May 18, 1912, he addressed to the board of supervisors of Milwaukee county the following communication:

“I hereby offer for sale to the county of Milwaukee the tract in the town of Granville, comprising about 203 acres of land, more or less, adjoining the new House of Correction site on the north, for seventy thousand dollars ($70,000). This land is bounded on the south by the new House of Correction site, on the west by the Chicago, Milwaukee & St. Paul Railway Co., and on the north, part of the distance, by the so-called Chicago-Northwestern Belt Line. About 120 acres, more or less, of the land lie west of the Hopkins road, and about 80 acres, more or less, lie east of said road. If you decide that you are interested only in the land west of the road, I will sell that portion west of the Hopkins road for forty-three thousand dollars ($43,000). The title to the land is free and clear of all incumbrances and a free and complete abstract of title will be furnished. This offer to remain open to you until the 1st day of July, 1912. I, however, reserve the right to demand and receive a higher price than that above quoted in case the land is procured by the county under condemnation or appraisal proceedings. A map of the land offered herewith is attached to my offer to the county board of supervisors under date of June 22, 1911.”

It appears that at that time Mr. Pereles was the owner of a tract of land in the town of Granville comprising about 203 acres; that a part of the tract lay on the west side of the Hopkins road and a part on the east side; that portion lying on the west side of the Hopkins road embraced parts of four governmental subdivisions.

Apparently the negotiations proceeded, and on May 24, 1912, Mr. Pereles wrote another letter to G. J. Riemer, chairman of the committee, House of Correction, which was as follows:

“At your request I have submitted the proposition of the sale of the lands to Milwaukee county situated west of the Hopkins road in the town of Granville to the parties in interest and after fully considering the same I have this proposition to make: In case the county purchases the said land I will sell the same for $325 per acre, cash, or will take $43,000 for all of said land which lies west of Hopkins road in bonds of Milwaukee county.”

On July 9, 1912, the committee to whom the communication of May 24th, was addressed reported to the county board of supervisors as follows:

“Your joint committee on House of Correction and Treasury and Taxes, to whom was referred the communication of T. J. Pereles, found on page 41 of the proceedings of this board, under date of May 21, 1912, and on pages 57 and 58 of said proceedings under date of June 4, 1912, relative to the purchase of certain lands therein referred to for the location and maintenance of the House of Correction of Milwaukee county, beg leave to report: That we have personally investigated the necessity for this purchase, and also the character of the lands in question, and we find those lands hereinafter described, which lie west of the Hopkins road, and which contain about 120.749 acres, more or less, are necessary to be acquired for the location and maintenance of the House of Correction of Milwaukee county; that said lands are especially adapted as a building site for the new buildings which are to be constructed; that said lands are also valuable and necessary for the employment of persons who may from time to time be confined in said House of Correction; that we have investigated the value of lands and find that the price at which...