Porter v. Cook

• Citation: 114 Wis. 60,89 N.W. 823
• Parties: PORTER v. COOK.
• Decision Date: 01 April 1902
• Court: United States State Supreme Court of Wisconsin

114 Wis. 60

89 N.W. 823

PORTER

v.COOK.

Supreme Court of Wisconsin.

April 1, 1902.

Appeal from circuit court, Brown county; Samuel D. Hastings, Judge.

Action by George F. Porter against William Cook. Judgment for plaintiff, allowing certain items of set-off, and plaintiff appeals. Modified.

This was an action to foreclose a mortgage obtained by the plaintiff by assignment after due from L. C. Porter. The adjudication of the amount due on the mortgage is not attacked on this appeal. The defendant counterclaimed, amongst other things, for damages upon breach of a written contract made by L. C. Porter December 29, 1888, as follows: “Received of Jules Parmentier and Wm. Cook * * * thirteen hundred dollars to apply on F. B. Gardner's lands sold L. C. Porter, and deeded him November 1st, 1886, and recorded October 12, 1887. Sold said Parmentier and Cook at one dollar an acre.” Almost immediately after the making of this agreement, disputes arose as to its execution; Porter insisting that he was required thereby to give only a quitclaim, and the defendant insisting on a warranty deed, or abstract showing clear title to all of the property specified in the deed to Porter. This controversy continued, each party insisting on his position. In August, 1889, a formal tender was made by defendant, with a demand for compliance according to his construction of the contract, namely, either a warranty deed covering all of said lands, or a deed without warranty, accompanied by an abstract showing clear title; and Porter reiterated his willingness to give a quitclaim deed which should cover all of the lands specified in the deed to him, although he had sold some, and although of some he confessedly had no title; also insisting that he was to be paid $1 an acre for all such lands, independently of whether he had any or an imperfect title. In this situation the parties entered into what is called an “agreement for arbitration” by one George Beyer, on November 7, 1889. They presented to him their various contentions, and he made an award covering this and various other matters. The portion relating to this agreement is substantially as follows: “All the lands covered by above receipt to which L. C. Porter has title I order deeded to Wm. Cook, by deed covenanting against his own acts, upon payment of the balance due, with interest at 7 per cent. from date of sale up to the time final payment is made.” Thereupon Porter executed a deed substantially the same as that which he had on previous occasions offered, to wit, a mere quitclaim deed, covering all of the lands received by him from the Gardner estate under the deed specified in the receipt, and deposited it with Beyer as custodian, to be delivered up on payment of $1 an acre for all the land named therein and interest in accordance with the award. That deed included certain lands which had been conveyed to Porter from the Gardner estate, but which in the interval he had sold, so that he had no title. It contained 80 acres of the same land as to which Porter had no title whatever, and it contained 120 acres the title to which was obscured by tax liens antedating the conveyance to Porter to a considerable amount. Meanwhile Parmentier had assigned to Cook all his rights under the agreement of sale above recited. After the delivery of that deed, Porter went to the Pacific coast, leaving it on deposit. Meanwhile Cook had contracted for sale of these lands at an advanced price to one Mariner, and was seriously embarrassed by any delay. He had full knowledge of all defects or variances in said deed now complained of. With that knowledge the defendant took said deed from the depositary, and paid to him the balance of the consideration therefor, in accordance with said award. Before taking it, he, or, rather, his attorney, pointed out to the depositary the defects complained of, and declared that the deed did not comply with the award. The attorney then went and endeavored to find Porter, without success; and just before the bank closed he returned to Beyer's office, “and told him that we would have to take the deed, but that we did not accept it as a compliance with the contract,”--pointing out his objections. He explained the reasons why they had to take it, and would take it for what it was worth. “Beyer's reply was, urging us to take it, because he was disgusted with the whole transaction, and did not want anything more to do with it.” The defendant shortly afterwards, apparently in pursuance of this conversation, procured to be paid the exact amount called for by the arbitration, and took the deed. The court held the defendant entitled to recover as damages several items of expense and loss resulting from Porter's continued refusal to comply with the contract of December 29, 1888, and from the...