Schwartz v. Syver

• Decision Date: 03 July 1953
• Citation: 264 Wis. 526,59 N.W.2d 489
• Parties: SCHWARTZ et al. v. SYVER.
• Court: Wisconsin Supreme Court

Page 489

59 N.W.2d 489

264 Wis. 526

SCHWARTZ et al. v. SYVER.

Supreme Court of Wisconsin.

July 3, 1953.

Action to recover earnest money paid on the purchase price of realty. Plaintiffs appeal from a judgment dismissing their complaint.

Defendant deals in real estate, both as a broker and for his own account. He owned a dwelling which plaintiffs wished to buy. Defendant drew up the following agreement which all parties signed and at that time plaintiffs paid to defendant $500 as there specified.

'Sales Contract

May 31, 1952

'Mr. Jerome A. Schwartz and Anna C. Schwartz, his wife, hereby offer to buy the property known as Lot 13 A Block 2 Wooddale, Walworth County, Wisconsin for the sum of $9500.00 (Nine Thousand Five Hundred Dollars). Payment for same to be $4,000.00 cash and monthly payments of $60.00 or more including interest @ 5% on each and every month until the balance of $5500.00 is paid.

'Interest to be computed @ 5% on the unpaid balance.

'Earnest money of $500.00 hereby received. Additional earnest money of $500.00 to be mailed up to Mr. Syver by June 3, 1952 and $3,000.00 more by June 7, 1952 in order to complete the down payment.

Jerome A. Schwartz

Anna C. Schwartz

John S. Syver'

May 31, 1952 was a Saturday and June 2nd a Monday. Between Saturday and Monday Mrs. Schwartz decided she did not want the place and Monday morning she called Mr. Syver on the telephone and told him they were not going through with the deal and wanted their money back. That same evening Mr. Schwartz had a similar telephone conversation with Mr. Syver. Mr. Syver urged them to complete their payments and suggested that they meet to talk the matter over. The Schwartzes did not make the payments agreed upon, either on June 3rd or June 7th. On June 7th they went in person to Mr. Syver and demanded the return of their down payment which Mr. Syver refused to give them. They repeated that they were not going to perform the contract for the reason that Mrs. Schwartz did not want the property. On June 20, 1952, they began the present action to recover the $500 previously paid. Approximately September 7, 1952 Syver sold the place to a third party for $11,000.

Further facts will be stated in the opinion.

John Morrissy, Lake Geneva, for appellants.

Moran, O'Brien & Richardson, Delavan, for respondents.

BROWN, Justice.

Plaintiffs submit that the document which they signed was not a contract but only an offer to purchase which they rescinded before it was accepted. It is not an instrument to do credit to a lawyer but we agree with the learned trial court in holding it to be a sales contract, as it describes itself to be, identifying property to be sold, specifying the terms of payment, signed by the contracting parties and partly performed by the buyers. The signing by the seller and his receipt of part of the purchase price cannot reasonably be interpreted as anything but an acceptance of the buyers' offer; hence, a contract.

Plaintiffs contend that the 'Sales Contract' does not satisfy the Statute of Frauds because the description of the property was not definite and certain. It appears that there is actually no land platted and recorded as Lot 13 A, Block 2, Wooddale, etc. There is a Lot 13, so platted and recorded. Defendant formerly owned all of it but sold a part several years ago. At that time he drew a line in pencil on his copy of the plat, on display in his office, dividing Lot 13 into two parcels and marked the part which he retained 13 A and the part then sold as 13 B. This map was shown to the plaintiffs during the negotiations for this sale. The defendant also took plaintiffs to the ground and showed them the corners of Lot 13 A and measured the boundaries for them. We have long held that the Statute of Frauds is satisfied in this respect if from the description given in the contract or memorandum, supplemented by other evidence, the property sold can be definitely ascertained. Pierson v. Dorff, 1929, 198 Wis. 43, 223 N.W. 579; Kuester v. Rowlands, 1947, 250 Wis. 277, 26 N.W.2d 639; and Gifford v. Straub, 1920, 172 Wis. 396, 179 N.W. 600. As these cases and other authorities cited therein show, parole evidence which explains the terms used without altering them is admissible for such supplementary purpose. The plaintiffs were shown the location of the so-called Lot 13 A on the plat in defendant's office, and were shown the location and the dimensions on the ground. The same parcel may readily be located again by the same evidence, following the same procedure. The contract is not void by reason of this objection. And even if the statute of frauds prevented enforcement of the contract that would not entitle plaintiffs to the return of their money.

'Where Vendee under Executory Contract is in Default.--* * * So long as the vendor is not in default and is willing and able to perform, the purchaser cannot wrongfully refuse to complete the transaction and recover what he has paid toward the purchase money. Moreover, according to the great weight of authority, this general rule applies even though the contract of sale is oral and for such reason cannot, on account of the statute of frauds, be enforced by action against the purchaser. * * *' 55 Am.Jur., sec. 535, p. 927, Vendor and Purchaser.

Another ground of appeal is that the trial court did not permit plaintiffs to show that the house did not conform to zoning restrictions. Actually, the trial did not reach that point. Counsel asked defendant if the zoning ordinance permitted a house on a lot of that size. Defendant replied that when the house was built it did not violate any restriction but that it did not conform to the present ordinance. The court sustained an objection to a further question as immaterial, counsel withdrew the question and did not pursue the subject. He made no offer of proof of an ordinance or a violation of it. The sales contract made no representation concerning zoning. The complaint ignores the subject. Nonconformity was not given by plaintiffs as a reason for repudiation. We cannot find that plaintiffs have preserved any right to review the trial court's disposition of this feature even if it had been erroneous under the circumstances.

Finally, plaintiffs argue that defendant's retention of their down payment results in a forfeiture which the law does not permit. Under circumstances such as those at hand, the Wisconsin decisions are against them.

'* * * The effect of such termination is to stop the performance at the point then reached, subject to the payment of damages, but not to undo what has already been done thereunder. In other words, the act of termination or repudiation stops the progress of events just where it finds them, but has no retroactive effect, and cannot, in reason, have any such effect. Applying that principle to the present case, it is very plain that the plaintiff cannot recover. The earnest money was voluntarily paid by the plaintiff at the inception of the contract as a part payment thereon, and was rightfully in defendant's possession. The plaintiff repudiated the contract while there was still ample time for the defendant to perform. By that act he did not and could not affect the character of the acts which had already been performed in carrying out the contract, and manifestly could not reinvest himself with the title to the earnest money. This is so plain that further discussion is unnecessary.' Woodman v. Blue Grass Land Co., 1905, 125 Wis. 489, 494, 103 N.W. 236, 237, 104 N.W. 920, cited with approval in Pierson v. Dorff, 1929, 198 Wis. 43, 223 N.W. 579.

The Pierson and Woodman cases, supra, denied recoveries of a down payment and of earnest money, just as the trial court denied similar recovery in the case at bar. The great weight of authority supports all three decisions but certain language in the precedent cases, relied on by the trial court, is susceptible of being understood to prevent the vendee's recovery of any and all money he may have paid the vendor, if the vendee's repudiation of the contract is without legal excuse. We think it well to say now that we are in accord with the trend of modern decisions which recognize that when the result of retention of moneys paid upon a contract by a vendee who later repudiates his obligation is a clear, unjust enrichment of the vendor, the vendor may be required to return such part of the payments as exceeds the loss which the vendee's default causes him. This principle of current decisions is well treated in the following extracts from authoritative texts.

'* * * Where the vendor does not rescind and the retention of purchase money paid does not unjustly enrich the vendor, a vendee who repudiates his contract without legal excuse is not entitled to recover from the vendor money paid in part performance of an executory contract, even though the contract contains no forfeiture clause or provision for the retention by the vendor of the money so paid as liquidated damages. * * *' 55 Am.Jur., sec. 535, p. 927, Vendor and Purchaser. (Italics ours.)

'Recovery by one who has broken his contract. Few questions in the law have given rise to more discussion and difference of opinion than that concerning the right of one who has materially broken his contract without...