Popp v. Swanke

• Decision Date: 01 March 1887
• Citation: 31 N.W. 916,68 Wis. 364
• Parties: POPP v. SWANKE AND OTHERS.
• Court: Wisconsin Supreme Court

68 Wis. 364

31 N.W. 916

POPP

v.SWANKE AND OTHERS.

Supreme Court of Wisconsin.

March 1, 1887.

Appeal from circuit court, Green Lake county.

Action to enforce specific performance of a contract. Judgment for plaintiff, Popp. Defendants appeal.Gabe Bouck, for respondent.

W. F. Gruenewald and Jackson & Thompson, for appellants.

COLE, C. J.

There is an insuperable difficulty in the way of affirming this judgment. The action is to enforce the specific performance of a parol contract for the sale of land. There has been no such part performance of the contract as will, under the decisions of this court, take the case out of the statute. Blanchard v. McDougal, 6 Wis. 167;Smith v. Finch, 8 Wis. 245. In Smith v. Finch, WHITON, C. J., says: “It is only cases where the defendant would be enabled to practice a fraud upon the complainant unless the contract is specifically executed that a court of equity will interfere. If the purchaser has gone into possession of the land so as to render him liable as a trespasser if the agreement is held void, the court will enforce performance.” Our statute expressly declares that every contract for the sale of lands shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the sale is made, or by his lawfully authorized agent. Section 2304. The difference between the phraseology of our statute and that of the English statute of 29 Chas. II., and of the statutes of most of our sister states, is pointed out by DIXON, C. J., in Brandeis v. Neustadtl, 13 Wis. 142. Our statute says the contract shall be void if not in writing. It is not merely voidable, as the learned counsel for the plaintiff contends. The distinction between a void and a voidable contract is important, and cannot be disregarded. The contract in question is of the former character. But the same counsel suggests that it is too late to raise the objection that the contract is invalid, because the objection was not taken by the pleadings or evidence. But the objection, we think, is available as the record stands. The answer states, in substance, that the plaintiff and defendant entered into a parol agreement, whereby the plaintiff sold to the defendant a lot of lumber which the plaintiff owned and had at Saxville, in the county of Waushara, and at Fremont, in the county of Waupaca; that, by the terms of this agreement, it was provided that the plaintiff should transport and deliver the Saxville lumber at Tustin free from charges, etc.; that, in consideration thereof, the defendant was to convey to him the land referred to in the complaint, and, in addition, transfer certain personal property named: that at the time, as a part of the arrangement or agreement, the defendant and wife executed a deed of the land to the plaintiff, and delivered it in escrow to the defendant Harronn. The answer further alleges that the plaintiff failed to perform the conditions of the contract on his part to be performed. All of the evidence in regard to the parol contract seems to have been admitted without objection; the parties differing materially as to its terms. At the close of the trial the defendant's counsel requested the court to find as a fact that the contract was by parol, and as a conclusion of law that it was void under the statute. This was sufficient to raise the question as to the invalidity of the contract in the court below.

From this statement of the case it is very plain that it comes fully and precisely within the decision in Campbell v. Thomas, 42 Wis. 439; for it is impossible to distinguish the cases upon any material point. There, in pursuance of an oral agreement for the sale of land by the defendant to the plaintiff, the latter paid a small part of the purchase money, and the defendant executed a deed of the land running to the plaintiff, (in which the consideration was simply stated to be $3,100,) and delivered the conveyance to H., with directions to deliver it to the plaintiff if the latter should on the second day thereafter deposit with H. his two notes for a certain sum secured by a mortgage, and also pay to H. for the defendant the balance of the consideration. Within the time, the plaintiff offered to H. the notes, mortgage, and money; but H., by the defendant's direction, refused to deliver to him the deed; at the same time tendered back to...