Stout v. Weaver

• Decision Date: 18 September 1888
• Citation: 39 N.W. 375,72 Wis. 148
• Parties: STOUT v. WEAVER.
• Court: Wisconsin Supreme Court

72 Wis. 148

39 N.W. 375

STOUT

v.WEAVER.

Supreme Court of Wisconsin.

September 18, 1888.

Appeal from circuit court, Ashland county; S. H. CLOUGH, Judge.

Action for specific performance brought by F. E. Stout against Fred Weaver. Defendant appeals from a judgment in favor of plaintiff.Tomkins, Merrill & Smith, for respondent.

Miles & Shea, for appellant.

ORTON, J.

This is a complaint for the specific performance of the following contract: “ASHLAND, WIS., April 19, 1887. Received of F. E. Stout five dollars as partial payment on ten acres of land bought of T. Bardon and now in my possession. I agree to sell this land to F. E. Stout for $150 per acre, $500 to be paid when contract is given, $500 in one year, and $500 in two years.” The complaint contains the necessary averments of performance and offer to perform by the plaintiff, and demand and refusal to comply by the defendant. The answer is a general denial. On the trial, the plaintiff, as a witness in his own behalf, testified, without objection, substantially that the contract referred to in the agreement was the contract between the defendant and one Thomas Bardon, by which certain 10 acres of land were purchased by the defendant from said Bardon, dated November 24, 1885, and that the same land was sold to the plaintiff. This contract was introduced in evidence, against the objection of the defendant. According to the terms of said contract said Bardon was to make the defendant a deed to said 10 acres, on the payment of $500, and interest, November 24, 1890. This contract was to be assigned and delivered to the plaintiff upon the payment of the first $500 mentioned in the agreement above set forth. By reference to said contract both the description of the lands sold and the meaning of the reference to a certain contract, which was to be given or delivered on the payment of the first $500, were made certain. It is now contended that such evidence was incompetent, and that the contract sought to be enforced is void for uncertainty. It will be observed that both the Bardon sale to the defendant, and that a certain contract was to be delivered, are mentioned in this contract. By reference to the Bardon sale, the contract meant is made clear. This evidence was competent, “not to vary the terms of a written contract, or to explain patent ambiguities in it, but to facilitate the construction of terms, obscure in themselves, in relation to the subject-matter, on the face of the...