Pierson v. Dorff

• Decision Date: 05 February 1929
• Citation: 223 N.W. 579,198 Wis. 43
• Parties: PIERSON ET UX. v. DORFF.
• Court: Wisconsin Supreme Court

198 Wis. 43

223 N.W. 579

PIERSON ET UX.

v.DORFF.

Supreme Court of Wisconsin.

Feb. 5, 1929.

Appeal from a judgment of the Circuit Court for Milwaukee County; Hon. John J. Gregory, Judge.

Action by Louis Pierson and wife against H. Dorff. Judgment of the civil court for defendant was reversed with directions by the circuit court, and defendant appeals. Reversed and remanded, with directions.--[By Editorial Staff.]

Action begun September 4, 1925.

Judgment entered December 10, 1927.

On the 25th day of July, 1925, the defendant, being the owner of certain real estate in Shorewood, Milwaukee county, Wis., entered into an agreement with the plaintiffs for the sale of said property to them for the sum of $20,000, of which amount the sum of $500 was paid at the time of the signing and sealing of the agreement. The agreement, among others, contained the following provision: “Said Louis Pierson and Rose Pierson, his wife, agree that they will buy and the said Henry Dorff agrees that he will sell the building which is now under construction, consisting of four stores, situated on Oakland Avenue, in Shorewood, county of Milwaukee, state of Wisconsin, at and for the agreed price, and terms, as follows. * * *” The plaintiffs' action is one to recover the $500 down payment, and is in the nature of an action for money had and received. The answer of the defendant alleged ability and willingness to perform his part of the contract, a due tender of performance, and the refusal of plaintiffs to perform. Defendant also prayed for specific performance.

These pleadings remained in this form until the action came on for trial in the civil court for Milwaukee county, in December, 1926. At that time the defendant moved to amend his answer by pleading a counterclaim for damages based upon plaintiffs' breach of the contract; such damages consisting of loss of rentals and the obligation to pay commissions, totaling the sum of $966.

The civil court denied any relief to the plaintiffs on their claim to recover the earnest money paid, and ordered judgment in defendant's favor for the amount claimed in the counterclaim for damages. Judgment having been entered accordingly, an appeal was prosecuted to the circuit court for Milwaukee county, where the judgment of the civil court was reversed, with directions to enter judgment in plaintiffs' favor for the sum of $500, with interest from the date of the demand, together with costs, etc. From this judgment the defendant has prosecuted this appeal.

Harry V. Meissner and Samuel M. Soref, both of Milwaukee, for appellant.

Maurice Goldberg, of Milwaukee, for respondents.

DOERFLER, J.

[1] Plaintiffs' counsel first insists that the written contract between the parties does not comply with the requirements of the Statute of Frauds (St. 1927, § 240.06); that the description is fatally defective, in that it is impossible from the writing itself to ascertain it; furthermore, that, assuming that oral testimony may be admitted as to surrounding facts and circumstances, in order to fix definitely the description of the property, nevertheless such oral testimony as was introduced is of no aid in that respect; and that after such introduction of oral testimony the definiteness and certainty of the description remained as vague and doubtful as ever. When the case was reviewed by the circuit court on the record of the civil court, the learned circuit judge in his opinion agreed with the aforesaid contentions of plaintiffs' counsel, and held that the contract did not meet the calls of the Statute of Frauds, either as contained in the writing or when supplemented by oral testimony.

In the case of Harney et al. v. Burhans, 91 Wis. 348, 351, 64 N. W. 1031, 1032, Justice Marshall, in rendering the opinion of the court, and in speaking of the subject now under consideration, states: “It must be definite in respect to the intention of the parties, who they are, their relation one to the other, who is the seller, who the buyer, the property, the price, and the terms of payment.”

In the case of Inglis v. Fohey, 136 Wis. 28, 116 N. W. 857, in speaking of the description necessary to meet the requirements of the Statute of Frauds, it is said: “The written contract is certainly indefinite in several particulars, especially in respect to the description of the real estate intended to be covered by it. If the court had no further information than that given by the writing on its face, it seems probable that it would be impossible of enforcement because of its indefinite terms. But where parties have attempted to reduce an agreement to writing, and such writing is in some respects indefinite or ambiguous, the contract does not necessarily fail, nor will a party suing upon it be denied relief. If, by aid of evidence showing the situation and surroundings of the parties at the time, and their subsequent acts, if any, construing the terms of the writing, the court can with reasonable certainty determine the meaning intended by the parties, the court will not allow the contract to fall, but will construe it in the light of such evidence and enforce its terms as so construed, if there be no other fatal objections to it.”

In that case a survey was made of the premises on the day following the execution of the agreement, and a sketch thereof made by the surveyor was admitted in evidence as a part of the contract, and the court held that the written contract, in the light of the subsequent act of the parties, established the property to be conveyed so as to satisfy the requirements of the Statute of Frauds.

Nowhere do we find a greater divergence of opinion on a legal question than that which exists in the various jurisdictions of last resort in this country upon a construction of the Statute of Frauds and with respect to what may be sufficient to meet the calls of the statute. This court has also traveled some distance beyond what might properly be deemed the intent entertained by the legislative body in enacting this law. The liberal construction placed on such statute made itself manifest at a very early date in the judicial history of this state and this spirit of liberality has continued without interruption up to the present time, and we must therefore conclude that such constructions as were placed upon the statute by this court have been so firmly rooted as to constitute definitely the law of this state. See Wisconsin Central R. Co. v. Schug, 155 Wis. 563, 145 N. W. 177;Gifford v. Straub, 172 Wis. 396, 179 N. W. 600;Brown v. Marty, 172 Wis. 411, 179 N. W. 602;Graham v. Lamp, 174 Wis. 373, 183 N. W. 150; 27 C. J. 272; Warvelle on Vendors, vol. 1, § 96. For cases where the description was so indefinite as to be beyond the aid of oral testimony to establish, see Durkin v. Machesky, 177 Wis. 595, 188 N. W. 97;Wirthwein v. Dailey, 182 Wis. 200, 196 N. W. 221.

In the instant case the contract itself referred to a building under construction consisting of four stores, situated on Oakland avenue, in Shorewood, county of Milwaukee, state of Wisconsin. On its face it would appear that this description, in and of itself, is not adequate. Oral evidence, however, was introduced to the effect that the plaintiffs took possession of the property, placed “For rent” signs in the windows, and advertised the property for rent in a newspaper in the city of Milwaukee.

The agreement also contains the following provision: “Seller agrees to furnish complete merchantable abstract of title extended to date showing Real Estate free and clear of all legal liens and encumbrances. * * *” It is undisputed that an abstract of the property was furnished to the plaintiffs, and that they delivered the same to their attorney for examination. An abstract of title of real estate, delivered under circumstances like those existing herein, can mean an abstract of no other property than that intended to be conveyed by the written agreement. Such an abstract is of no value whatever unless it specifically describes the real estate. Furthermore, in order to comply with the terms of the agreement, it was necessary for the abstract to disclose a good, merchantable title of every square inch of the property contracted for. The contract itself was partially performed, in that possession was delivered by the defendant to the plaintiffs, and accepted by them.

In the case of Bulkley v. Devine, 127 Ill. 406, 20 N. E. 16, 3 L. R. A. 330, the real estate was described as “The house known and numbered as No. ______ Thirty-Second Street.” The purchaser took possession of the property and paid rent for the use of the premises. The court held that under these circumstances no advantage could be taken, by the purchaser, of the indefiniteness appearing in the description itself. In its opinion the court said: “On the undisputed facts, the defense is self-refuting. Can he, having executed the contract, taken possession under it, held possession and paid rent under it, both to his lessor and appellee, now repudiate that contract because it does not definitely describe the house? * * * Extrinsic proof is always competent to identify the subject matter of a contract, if necessary. * * *”

We therefore conclude that the contract is valid, and is not subject to the alleged objections of invalidity urged by plaintiffs' counsel.

[2][3] As has heretofore been said, plaintiffs' action is brought to recover from the defendant the amount paid as earnest money upon the contract. Before the time arrived for the consummation of the executory contract of sale, the plaintiffs repudiated the contract and notified the defendant that they were unable to proceed with the consummation, and would not proceed, on account of their financial disability. The act of the plaintiffs therefore amounted to an anticipatory breach. The defendant, in that situation, not being in default, but having lived up to his contract, had available the following remedies: (1) He could have maintained an action...