Schweitzer v. Connor

• Decision Date: 20 February 1883
• Citation: 14 N.W. 922,57 Wis. 177
• Parties: SCHWEITZER v. CONNOR.
• Court: Wisconsin Supreme Court

57 Wis. 177

14 N.W. 922

SCHWEITZER

v.CONNOR.

Supreme Court of Wisconsin.

Filed February 20, 1883.

Appeal from circuit court, Wood county.

G. W. Cate, for respondent, Jacob Schweitzer.

Powers & Briggs, for appellant, Robert Connor.

COLE, C. J.

If the circuit court was right in treating the instrument of January 10, 1878, as a contract for the sale of real estate, and not a receipt merely, then indubitably the rulings, excluding all parol evidence to show that the pine timber on the land was reserved by the vendors, were correct. That instrument reads as follows:

“PORT EDWARDS, WiSCONSIN, January 30, 1878.

Received of Jacob Schweitzer $25. This amount is paid to secure that portion of the S. W. 1/4 of section (21) twenty-one, township (25) twenty-five, range (4) four, that lies south of the Wisconsin Central Railroad, at nine dollars per acre, upon condition that on March 15th the one-third of the whole amount, being the first payment, shall then be made.

+------------------------+
                ¦25.¦JOHN EDWARDS & Co.” ¦
                +------------------------+
                

On the back of the instrument is this memorandum: “March 15, 1878, first payment to be made, $317. March 15, 1879, second payment to be made, with interest from the 1st. March 15, 1880, third payment to be made, with interest from the 1st.”

The evidence fails to show clearly when this memorandum as to payments was made; but it is a fair inference that it was so made when the instrument was executed. This being the case, there can be no doubt that the instrument contained all the essentials of a complete contract for the sale of real estate, and of course parol evidence could not be given to contradict or vary its terms. The fact that the writing was not signed by the vendee would not affect its validity as an agreement because he accepted it and was bound by it. Vilas v. Dickinson, 13 Wis. 488;Lowber v. Conuit, 36 Wis. 177;Hutchinson v. Railway, 37 Wis. 582. But looking at the whole instrument it must be regarded as a good legal contract, sufficiently specific in its terms as to price, time of payments, and description of the land sold. It purports to be, and was doubtless intended by the parties to be, something more than a receipt for $25. It secured to the purchaser the right to the legal title providing he should make the payments as fixed. It therefore stood upon the same footing as other written contracts, and was not open to explanation or contradiction by parol. This rule is too familiar to require the citation of authorities in its support. It is true, payment was not made on the fifteenth of March, as the contract required, but, nevertheless, money was paid and received upon it on the twenty-second of the month, which was a waiver of the condition. At this time, likewise, there was a change as to future payments; and the learned counsel for the defendant claims that the original contract was then abandoned, and a new parol contract for the sale of the land was made. But the evidence does not sustain this position. Mr. Edwards himself testified that “the only alteration on the twenty-second of March was in regard to the payments.” In all other respects it appears the contract was left unchanged, and fixes the rights of the parties to it. It certainly does not reserve to the vendors the right to the standing pine on the land sold, as claimed by defendant's counsel. Nor could the fact that such a reservation was made be shown by parol.

This brings us to the question of damages. In the answer the defendant avers that the pine timber on the land was owned by Edwards and Scott, and he alleges that he cut and removed the same by virtue of a license from them. But we have seen that the written contract made no reservation of the pine timber to the vendors, therefore a license from them afforded no excuse or justification for the trespass. The evidence shows that the plaintiff went into possession under the contract on the first of April, 1878, and made improvements upon the land. He paid, or offered to pay, all that was due on the contract. He put himself in the position to demand a conveyance of the legal title from the vendors. He was the equitable owner, and upon the facts there can be no doubt that the timber was wrongfully cut and removed. This necessarily follows from the view we have taken of the written agreement. There is no pretense that the timber was cut under any mistake of fact; indeed, no such defense was set up in the answer. If there was any mistake in the matter it was rather one of law as to the rights of the parties under this instrument. Such being the case, the statute determines the measure of damages to be the highest market value of the timber or lumber, in whatsoever condition or shape it may be, whether manufactured or not, while in the possession of the wrong-doer. Section 4269, Rev. St.

This is the rule prescribed by the legislature, and was not established by this court, as suggested by the learned circuit court in its charge. If the rule is an unjust or oppressive one, the remedy is with the legislature; but,...