S. Colonization Co. v. Howard Cole & Co.

• Decision Date: 20 January 1925
• Citation: 201 N.W. 817,185 Wis. 469
• Parties: SOUTHERN COLONIZATION CO. v. HOWARD COLE & CO., INC.
• Court: Wisconsin Supreme Court

185 Wis. 469

201 N.W. 817

SOUTHERN COLONIZATION CO.

v.HOWARD COLE & CO., INC.

Supreme Court of Wisconsin.

Jan. 13, 1925.

Dissenting Opinion Jan. 20, 1925.

Appeal from Circuit Court, St. Croix County; George Thompson, Judge.

Action by the Southern Colonization Company against Howard Cole & Co., Incorporated. After trial commenced, the parties entered into a stipulation. From an order of the trial court setting aside the stipulation, plaintiff appeals. Appeal dismissed.

Owen, J., dissenting.

This action was brought by the plaintiff to recover damages in the sum of $80,000 for fraud and deceit in the sale of certain lands in Louisiana by the defendant to the plaintiff. After the trial had been in progress one day, negotiations were begun for a settlement of the matters in controversy. After many hours of conference, a settlement was agreed upon; the agreement being reduced to writing as follows:

“State of Wisconsin, Circuit Court for St. Croix County.

Southern Colonization Company, Plaintiff, v. Howard Cole & Company, Incorporated, Defendant.

It is stipulated by and between the parties to the above-entitled action, represented by their respective attorneys, George S. Grimes and Spencer Haven, appearing for the plaintiff, and Jeffris, Mouat, Oestreich, Avery & Wood appearing for the defendant, that all matters in difference between the parties to the above-entitled action are settled, compromised, and adjusted in full upon the following terms: That the defendant will convey by warranty deed, free and clear of all incumbrances, within 30 days from date hereof, to a person to be named by counsel for plaintiff within 10 days from date hereof, the following described real estate, to wit: section 35 in township 31 of range 33 east, sections 1, 2, 3, 10, 11, 12, 13, 14, 23, and the north half of section 24 of township 32 range 33 east, and sections 7 and 17 of township 32 range 34 east, all south and east of the Tallahassee meridian, in the county of Osceola, in the state of Florida.

It is further stipulated that W. M. Murphy and Frederick G. Potter make a claim against P. A. Vans Agnew for an unsatisfied balance as a deficiency on the foreclosure of a mortgage upon lands in Avoyelles parish, in the state of Louisiana, which are involved in the above-entitled action, and that said W. M. Murphy and the above-named defendant will release, satisfy, and discharge said P. A. Vans Agnew and the above-named plaintiff from all obligations upon said deficiency obligation and liabilities thereon, and hold them harmless therefrom; said W. M. Murphy being present at the time this stipulation is made in open court and consenting thereto.

It is further stipulated that upon the performance of the above and foregoing stipulation an order may be entered in this action dismissing the same upon the merits without costs to either party. In the event of the failure of the defendant herein to carry out this stipulation within the time stipulated, and the default of said defendant continuing for a period of 90 days thereafter, then and in that event judgment may be entered in this action for the recovery by plaintiff from the defendant of the sum of $20,000, together with costs of this action.

It is further stipulated that a written document of release executed by W. M. Murphy, on behalf of himself, and Howard Cole, on behalf of said Frederick G. Potter, and an agreement on the part of Howard Cole & Co., Inc., holding the said P. A. Vans Agnew and the plaintiff harmless from all obligations and liability for the deficiency mentioned in this stipulation, shall be a sufficient performance thereof.

Dated at Hudson, Wis., this 8th day of May, 1923.

George S. Grimes,

Spencer Haven,

Attorneys for Plaintiff.

Jeffris, Mouat, Oestreich,

Avery & Wood,

Varnum & Kirk,

Attorneys for Defendant.

W. M. Murphy.

Howard Cole Company, Incorporated,

By Howard Cole, Prest.

Southern Colonization Company,

By W. S. Dwinnell.

F. B. Lynch.

It is hereby stipulated and agreed that in consideration of the above and foregoing settlement the undersigned agree to fully indemnify,protect, and save harmless said Howard Cole & Co., Inc., from any suit or proceeding by any person to recover damages by reason of the claim or cause of action set forth in the complaint herein or any liability or expenses arising out of the same. Provided, that in case of the commencement of any such claim or proceeding, said Howard Cole & Co., Inc., shall promptly notify the undersigned of the commencement thereof and defend said action in good faith.

John Lind.

W. S. Dwinnell.

F. B. Lynch.

Geo. S. Grimes.”

Upon the filing of the stipulation the trial of the cause was discontinued and the jury discharged. Pursuant to the terms of the stipulation, and within 10 days thereafter, the plaintiff designated George S. Grimes as the person to whom the lands described in the settlement should be conveyed. On June 4, 1923, 27 days after the stipulation was entered into, the defendant moved the court for an order vacating and setting aside the stipulation of settlement on the ground that the defendant and its officers had been enjoined by the circuit court of Duval county, Fla., from making the conveyance of the lands described in the settlement. The motion of the defendant was continued to July 31, 1923. From the motion papers it appears that within two weeks after the stipulation of settlement was made an action was commenced in the circuit court of Duval county, Fla., by Peter Digman, as ancillary receiver of the Southern Colonization Company against Howard Cole & Co. and Howard Cole, to restrain and enjoin them from carrying out the agreement of settlement, and service of a temporary injunction was made upon Howard Cole & Co. and Howard Cole on May 22, 1923. It also appears that John Lind and his associates were called upon to defend the suit begun by the Florida receiver; that they thereafter procured a dismissal of that suit and a dissolution of the temporary injunction restraining Howard Cole & Co. from carrying out its agreement of settlement in the Wisconsin suit, and secured a discharge of the ancillary receiver at an expense of upwards of $1,500, and that they also procured a winding up of the receivership proceedings in Minnesota, and a discharge of the Minnesota receiver of the Southern Colonization Company. Thereupon the defendant filed affidavits and asked to have the stipulation set aside on the ground that it was entered into by mistake, in that it supposed that it owned the lands described in the agreement, whereas in fact it did not own all but only part of these lands, and therefore could not carry out its contract to convey the lands. The hearing upon this motion was continued until December 1, 1923. In the meantime, and on September 25, 1923, the plaintiff moved, having first made it appear to the court that the defendant had not complied with the stipulation that judgment be entered against the defendant for $20,000 and costs, in accordance with the terms of the stipulation. Both motions were thereafter continued, and on December 1, 1923, were submitted to the court. On February 16, 1924, the court entered the following order:

“It is ordered that, subject to the conditions hereinafter stated, the stipulation for settlement of this action made, entered into, and filed herein on the 8th day of May, 1923, be, and the same is hereby set aside and a new trial of this action on the merits, and on the issues as framed by the pleadings herein is hereby granted upon payment by the defendant to the plaintiff or its attorneys, the sum of $750 for costs and terms on defendant's motions hereby granted, unless within 20 days after service of this order the plaintiff shall serve upon defendant's attorneys, and file with the clerk of this court, its election, and consent to accept one of the two offers of the defendant hereinbefore mentioned, to wit:

(1) Defendants offer to convey all of the lands described in said stipulation of May 8th, except said sections 7 and 17, and to pay in lieu of said two sections the sum of $3,200 in cash.

(2) Defendants offer to convey all of the lands described in said stipulation of May 8th, except said sections 7 and 17, and in lieu of said two sections to convey the three sections hereinbefore more particularly referred to, or any two sections to be selected by plaintiff from the lands described in the affidavits and offer of the defendant to the plaintiff, which said affidavits and offer are part of the motion papers upon which this order is based.

It is further ordered that in the event of the failure of the plaintiff to serve and file its acceptance of one of said offers, referred to and numbered 1 and 2 last above, within 20 days after service on its attorneys of a copy of this order, then said stipulation of May 8, 1923, shall be and is hereby set aside, and a new trial of this action on the merits and upon the issues as framed by the pleadings herein is hereby granted on payment to the plaintiff's attorneys by the defendant, or, in lieu thereof, depositing in court for the use of the plaintiff, of $750 costs within 5 days after said 20 days shall have expired. The said sum of $750 costs is fixed by the court pursuant to verbal stipulation made by the parties in open court on December 1, 1923.

And it is further ordered that, in the event of the failure of the defendant to pay or to deposit said $750 within said 5 days, then the plaintiff on the filing of due proof of such failure shall have judgment against the defendant for the sum of $20,000, together with its taxable costs and disbursements in this action.

And it is further ordered that, in the event the plaintiff serves and files its acceptance of either of defendant's offers numbered 1 and 2 above,...