Siler v. Read Inv. Co.
| Decision Date | 05 June 1956 |
| Citation | 77 N.W.2d 504,273 Wis. 255 |
| Parties | John W. SILER, Appellant, v. READ INVESTMENT CO. et al., Respondents. |
| Court | Wisconsin Supreme Court |
Kleczka & Frisch, Milwaukee, Edward A. Dudek, Milwaukee, of counsel, for appellant.
Maurice Weinstein, Milwaukee, for Paul Rosenblatt.
Charles L. Goldberg, Milwaukee, for Read Inv. Co.
Francis X. Krembs, Milwaukee, of counsel, for respondents.
A review of the record convinces us that the evidence clearly establishes that the letter of December 15, 1955, set forth in the statement of facts, did not create an enforceable agreement between the respondent, Read Investment Company, and the appellant. There can be found in that letter no basis for claiming an enforceable agreement. As it is upon that document that the appellant must rest his case with reference to specific performance, and because it does not meet with the requirements of a valid contract for the sale of land or an interest therein, his claim with respect thereto was properly disallowed. There is no expression of a consideration, nor is there any acknowledgement in writing by the respondents of terms on which such sale could be claimed. Sec. 240.08, Stats.
The findings of fact are supported by the evidence. It appears that on or about October 27, 1955, the respondent, Read Investment Company, and the plaintiff completed negotiations for the purchase and sale of Lot 4, Block 1. It appears that the appellant expressed some interest in Lot 5, and the respondent Read Investment Company wrote the letter which is set out in the statement of facts. In the letter it will be noted there is reference to certain facts which were likely to have a bearing on the future status of Lot 5, and at the request of appellant there was interlined in the latter, which had been typewritten, a longhand statement to the effect that the appellant was to be given the first opportunity to buy Lot 5. The respondent Read Investment Company later received an offer from the defendant, Rosenblatt, to purchase Lot 5. Rosenblatt was informed of the letter in which the respondent had said it would permit the appellant the first opportunity to purchase Lot 5. It is a fact respondent did afford the appellant the opportunity to purchase the land described at the same price and upon the same terms and conditions as the defendant Rosenblatt had offered Read Investment Company. Rosenblatt's offer was then accepted. The premises were conveyed to him on December 16, 1954. Thereafter the appellant began this action, and after a motion for summary judgment was denied, appellant amended the complaint to read as it appears in the statement of facts. We find that no facts exist on which the claim of the appellant against the Read Investment Company can be maintained, and the judgment of the trial court in that respect must be affirmed.
With reference to the further contention that respondent Rosenblatt violated the restrictive covenants regulating the use of Lot 5, the trial court ruled that no right of appellant was transgressed by building a residence on the land purchased by Rosenblatt. In treating with the facts in their relation to the claim of appellant, and interpreting the restrictive covenants, the trial court gave due weight to the elements necessary to be considered. In reaching his decision, he followed the settled rule governing construction of instruments of this nature, and in his consideration recognized the principles of law governing the construction of contracts. The interpretation must be upon the entire instrument and not upon disjointed or particular parts of it. It must be borne in mind that the office of judicial construction is not to make a contract conform to the wishes of a party manifesting itself after the agreement has been made, but to determine what was agreed and set forth in the instrument itself. Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 115, 116, 69 N.W. 354; 17 C.J.S., Contracts, § 295, p. 689; 12 Am.Jur. 745, sec. 227.
The restrictions before us on this appeal are to be read in the light of the meaning intended by the immediately interested parties. Whether this lot in question was intended to be a residential lot on which a private dwelling may be erected must be determined from an examination of the provisions embodied in the document reciting the restrictions and protective covenants. Those restrictions were duly recorded, and reference to the controlling provisions will be made. There is no specific restriction with relation to the use to which Lot 5, the lot in question, may be put. The restrictions do provide in paragraph 4 as follows:
'Nothing in this paragraph or in any other paragraph of these restrictions shall be construed to prevent the erection and maintenance of equipment and structures to house the necessary equipment used in the operation and maintenance of the proposed cooperative water system, as well as any other equipment owned, used or maintained by the owners of the Green Tree Valley property for their joint use in the maintenance of lawns, parkeways, highways, and the like.'
The language employed must be considered in connection with the nature of the object to be accomplished. It must be read in the light of other provisions set forth in the instrument. Marshall & Ilsley Bank v. Greene, 227 Wis. 155, 278 N.W. 425. There is a general agreement in texts and court opinions that the purpose to be accomplished set forth in the instrument is material to the ascertainment of that intention. The trial court, from a consideration of all terms and provisions in the restrictive covenants affecting the use to which the several lots may be put, held that the rights claimed by appellant were without foundation, and that he had no cause of action at law or in equity against the respondent. The use of lots in Green Tree Valley Subdivision is for residential purposes. All other building, unless particularly provided for, is excluded. The land is to be used for private residential purposes only, and no building of any kind whatever, except as provided for in the provisions, shall be erected or maintained thereon except private dwelling...
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