Seraphine v. Hardiman

• Decision Date: 30 September 1969
• Docket Number: No. 149,149
• Citation: 44 Wis.2d 60,170 N.W.2d 739
• Parties: Milton V. SERAPHINE and Ramona W. Seraphine, his wife, Appellants, v. Helen C. HARDIMAN, co-partner of Ralph M. Hardiman, deceased, doing business as Hardiman Oil Company; Laura P. Hardiman, Executrix of the Estate of Ralph M. Hardiman; Center Street Fuel Company, a Wisconsin corporation; Hardiman Oil Inc., a Wisconsin corporation; and Elmer H. Kelling, Respondents.
• Court: Wisconsin Supreme Court

Page 739

170 N.W.2d 739

44 Wis.2d 60

Milton V. SERAPHINE and Ramona W. Seraphine, his wife, Appellants, v. Helen C. HARDIMAN, co-partner of Ralph M. Hardiman deceased, doing business as Hardiman Oil Company; Laura P Hardiman, Executrix of the Estate of Ralph M. Hardiman Center Street Fuel Company, a Wisconsin corporation Hardiman Oil Inc., a Wisconsin corporation; and Elmer H. Kelling, Respondents.

No. 149.

Supreme Court of Wisconsin.

Sept. 30, 1969.

This is a suit for the specific performance of an oral agreement to convey a small parcel of land with easements to use adjoining land. The defense denies the existence of an oral agreement concerning the easements and by counterclaim asks that the title to the adjacent land be confirmed in the defendant Hardiman Oil Inc., the present owners, free from the claim of such easements.

At the close of the plaintiffs' case, the court dismissed the complaint on its merits on the ground the plaintiffs Milton V. Seraphine and his wife Ramona had not proved the existence of an oral agreement by clear, satisfactory and convincing evidence and confirmed the title in Hardiman Oil Inc. to the adjacent land free from the claimed easement. From the judgment dismissing the complaint and confirming title, the Seraphines appeal.

Snyder, Fisher, Lee & Lilly, Milwaukee, for appellants.

Hersh, Magidson & Lensky, Milwaukee, Hippenmeyer, Reilly, Fritz & Arenz, Waukesha, for Helen C. Hardiman, respondent.

Lowry, Hunter & Tikalsky, Waukesha, for respondent Laura Hardiman, Exrx.

HALLOWS, Chief Justice.

The basic issue is whether the Seraphines met their burden of proving an oral agreement for the sale of the land and easements. According to the testimony offered by Seraphine, a gravel hauler, he made an oral agreement with Hardiman Oil Company, a partnership composed of Milo and Ralph Hardiman, brothers, which was the owner of a tract of land in the village of Sussex, Wisconsin. Seraphine testified that sometime prior to June 15, 1961, he entered into the oral agreement for six-tenth of an acre of land and certain easements to be used in connection with the land for $800. The purchase price was paid in installments; the final payment being made on October 12, 1962. In February, 1963, he received a warranty deed but the legal description did not conform with a legal description in a survey, which Seraphine testified he received about the time he made the oral contract, so he rejected the deed.

The survey, dated January 5, 1961, shows the six-tenth of an acre as being a piece of land approximately 220 feet by 120 feet set back from Silver Spring Road about 158 feet. Connecting this parcel with the road is an easement varying from 30 feet at Silver Spring Road to 60 feet along the south side of the parcel of land. The survey also shows what is claimed by Seraphine to be other easements over adjoining land. These easements would give him the right to use the land along the east side of the fee parcel to a distance of 50 feet and a triangular area between Silver Spring Road and the fee parcel.

Stuart Hildebrand, a surveyor, testified he surveyed the land about a week prior to its date and had talked to Milo Hardiman who pointed out the specific boundary points of the property including the easements which were to be included in the survey. Hildebrand further testified the easements were to be used in conjunction with the land conveyed to the Seraphines. However, on cross examination Hildebrand testified he could find no billing for the survey, he did not talk to Milo but to his brother Frank, although there is no brother by the name of Frank, and that Hardiman never told him whom the survey and the easements were for.

Milo Hardiman died on May 4, 1962, and shortly after the commencement of this action, Ralph Hardiman died. On January 24, 1964, Center Street Fuel Company agreed to purchase all the assets of the business carried on by the Hardiman partnership including the land which it owned. A new corporation, the Hardiman Oil Inc., was organized by Center Street Fuel Company and the land, excepting that described in the deed to the Seraphines, was conveyed to the new corporation. No agent or representative of the Center Street Fuel Company made any inquiry of Mr. Seraphine concerning his rights or interests in the property described in the survey.

During some or all of this time Seraphine was parking his four large 47-foot gravel tractor-trailers on the six-tenths of an acre parcel, about which there is no dispute, and was using the area over which he claims he has easements for the use thereof. This use was not such as to put a proposed buyer on notice of Seraphines' claim. Other people used the same area and this land is near a filling station, unmarked, unfenced, and had the appearance of open space. The dispute over the easements came to a head when the Seraphines began constructing a building on the property owned in fee and as a result the Seraphines commenced this suit.

One difficulty with this appeal is that the Seraphines ignore the fact the trial court, the trier of the facts, did not believe the testimony of the surveyor and Seraphine. The testimony which remains, after excluding that which was rejected as lacking credibility, fails to meet the burden of proof which requires an oral contract to be proved by clear, convincing, and satisfactory evidence. It is an old and well-established rule in this state that in cases for specific performance an oral contract and all its essential terms must be proved by clear, convincing, and satisfactory evidence. A mere preponderance of the evidence is not sufficient. Blanchard v. McDougal (1857), 6 Wis. 167; Fontaine v. Riley (1926), 189 Wis. 226, 207 N.W. 256; Marshall & Ilsley Bank v. Schuerbrock (1928), 195 Wis. 203, 217 N.W. 416; Estate of Powell (1932), 206 Wis. 513, 240 N.W. 122.

If the trial court had...