Sherwood v. Merritt

• Decision Date: 25 October 1892
• Citation: 83 Wis. 233,53 N.W. 512
• Parties: SHERWOOD v. MERRITT.
• Court: Wisconsin Supreme Court

83 Wis. 233

53 N.W. 512

SHERWOOD

v.MERRITT.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Action by William C. Sherwood against Frank W. Merritt to recover money had and received. From a judgment for plaintiff, defendant appeals. Affirmed.Arnold & Baldwin and R. R. Briggs, for appellant.

Knowles, Graham & Wilson, for respondent.

ORTON, J.

This case comes here to be decided on the pleadings, findings of fact, and conclusions of law alone, there being no exceptions in the record. Geisinger v. Beyl, 71 Wis. 358, 37 N. W. Rep. 423. The findings of fact will be considered a verity on this appeal. Hallam v. Stiles, 61 Wis. 270, 21 N. W. Rep. 42. The findings of fact are substantially as follows: The plaintiff and defendant made an oral contract in relation to the sale of certain land by the defendant to the plaintiff on the 18th day of December, 1890, which was to be and was reduced to writing by the plaintiff, and presented to the defendant for his signature, as follows, to wit: “$700.00. Received of W. C. Sherwood the sum of seven hundred dollars, being earnest money and partial payment for the purchase of the following described property, situated in the county of Douglas, state of Wisconsin: The northeast quarter of the southwest quarter of section 14, township 48, range 13, containing 40 acres, for the full price of $300 per acre, to be paid, viz., the sum of $3,300 in cash at this office when the deal is to be closed, within fifteen days after delivery of an abstract of the title to said property at said office, showing good and perfect and clear title thereof of record, except as herein stated, and the balance to be paid, viz., subject to one half a mortgage of $8,000, due one and two years from October 18, 1890, in equal payments, and a second mortgage of $4,000, due in equal payments of one and two years, December 18, 1890. All deferred payments to bear interest at eight per cent., to be secured by mortgages on said property. All accrued interest on any incumbrance now on said property shall be deducted from the cash payments. Warranty deed to be given vesting perfect title in said Sherwood, assigns, or order. If the title shall prove defective, and said purchaser shall refuse to accept the same, the said sum of $700 earnest money shall be returned at once to said Sherwood or assigns. If the title shall be perfect, and said deed shall be tendered to said Sherwood or assigns as above, and said Sherwood or assigns shall fail to comply with the above terms, then the said sum of $700 earnest money shall be forfeited as the consideration of this contract, and this deal shall be off.” The plaintiff handed this contract, together with his bank check, drawn in favor of the defendant for $700, to the agent of the defendant, with the understanding and agreement that said contract should be signed without any change or alteration by the said defendant, and, when so signed, to deliver the check to the defendant, and the contract returned to the plaintiff. The defendant's agent, before said contract was signed by the defendant, changed the same by inserting the words “more or less” after the words “40 acres,” without the knowledge of the defendant; and it was so signed and delivered to the plaintiff, and the bank check was delivered to the defendant. As soon as the plaintiff discovered that the contract had been so changed, he offered it back to the defendant, and demanded back his check, or the payment of the $700; and the defendant refused to receive...