Superior Consol. Land Co. v. Nichols

• Decision Date: 22 March 1892
• Parties: SUPERIOR CONSOLIDATED LAND CO. v. NICHOLS ET AL.
• Court: Wisconsin Supreme Court

81 Wis. 656

51 N.W. 878

SUPERIOR CONSOLIDATED LAND CO.

v.NICHOLS ET AL.

Supreme Court of Wisconsin.

March 22, 1892.

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

Action by the Superior Consolidated Land Company against Annette W. Nichols and others to recover land on the non-performance of the contract of sale. From a judgment for plaintiff on demurrer defendants appeal. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

In December, 1889, James Bardon and H. F. C. Nichols entered into a contract in writing, in and by which Bardon agreed to sell and convey to Nichols certain lots in Superior, Douglas county, upon full performance by Nichols of certain covenants and agreements specified in such instrument. These were to the effect that Nichols should, within 200 days thereafter, construct upon said lots a forge plant of a capacity to employ therein at least 25 men, and to maintain and operate the same with that number of men for 4 years from the date of the agreement, in a business-like manner, unless delayed by fire, financial depression, or other cause beyond his control, but not for want of funds to operate the plant, the same not to remain idle or employ less than 25 men, for 6 months at a time, for any cause whatever. The instrument contains many other stipulations upon the part of Nichols, relating to such plant and business, payment of taxes, etc., not necessary to be stated. The instrument contains the usual clauses for forfeiture of the contract, and the surrender of the premises to Bardon, in case of default by Nichols in the performance of his agreements, and stipulates that time shall be of the essence of the contract, and that Nichols should have possession of the lots until default. The complaint sets out such agreement; alleges the death of Nichols in 1890, testate; the probate of his will, in which he devised and bequeathed all his property to his wife, the defendant Annette W. Nichols, who is named as executrix in such will, and who has duly qualified and is acting as such; and that in February, 1891, Bardon sold and conveyed to the plaintiff corporation all his interest in the lots in question, and assigned and transferred to it such agreement. The complaint then charges that such agreement has not been performed, either by Nichols in his life-time or by the defendant Annette W. Nichols since his decease. Breaches of Nichols' covenants in many material particulars are alleged with much particularity, and at considerable length. It is unnecessary to state these in detail. It is also alleged that in August, 1891, plaintiff elected to consider the agreement void for non-performance thereof by Nichols and his representatives, and that it duly notified the...