Telford v. Frost

• Decision Date: 28 January 1890
• Citation: 76 Wis. 172,44 N.W. 835
• Parties: TELFORD v. FROST.
• Court: Wisconsin Supreme Court

76 Wis. 172

44 N.W. 835

TELFORD

v.FROST.

Supreme Court of Wisconsin.

Jan. 28, 1890.

Appeal from circuit court, Ashland county.

The complaint alleges, in effect, that on Monday, March 21, 1887, the plaintiff and one Schultz, for the consideration therein named, obtained an option in writing from one Colwell in these words: “Ashland, March 21, 1887. I hereby give J. K. Schultz and T. Telford an option on the east seventy feet of block eighteen, (18,) lots seven (7) and eight, (8,) for which they pay me $15, until Wednesday, March 23, 1887, at ten o'clock in the forenoon, for the sum of $3,000. J. A. COLWELL.” That on the same day said Schultz, for the consideration therein named, executed and delivered to the plaintiff an assignment in writing of said option, in these words: “In consideration of $7.50, I transfer my interest in the within option from Joseph Colwell to Thomas Telford. J. K. SCHULTZ.” The complaint further alleges, in effect, that March 22, 1887, the defendant and the plaintiff made and entered into an agreement that the plaintiff should bring said Colwell to the defendant, and that the defendant would enter into an agreement with said Colwell to purchase said property from said Colwell for the sum of $3,000, and that, in consideration of the services of the plaintiff in so doing, and permitting the defendant to take the place of the plaintiff in purchasing said property from said Colwell for said sum, according to said option, the defendant promised and agreed to pay the plaintiff the sum of $1,000; that, pursuant to that agreement, the plaintiff, on March 22, 1887, brought said Colwell to the defendant, and authorized the defendant to purchase said property from said Colwell upon the terms mentioned in said option, and that the defendant then and there made and entered into an agreement in writing with said Colwell to purchase said property for said sum, whereby the defendant became indebted to the plaintiff in the sum of $1,000; that the agreement so alleged to have been made between the defendant and Colwell was in writing, and was to the effect that said Colwell had, on said March 22, 1887, sold to Morris Beifield, of Chicago, the property mentioned for the sum of $3,000, payable as therein expressed. The defendant's answer, in effect, denies each and every allegation of said complaint, except the making of said writings. At the close of the trial the jury returned a verdict in favor of the plaintiff for $1,000, and interest from August 1, 1887. From the judgment entered upon said verdict the defendant brings this appeal.

Gallagher & Lemon and F. W. Houghton, ( Wm. M. Tomkins, of counsel,) for appellant.

Lamoreux & Gleason, for respondent.

CASSODAY, J., ( after stating the facts as above.)

The learned counsel for the defendant is undoubtedly right in claiming that the optional written contract held by the plaintiff against Colwell gave to the plaintiff an interest in the land therein described, within the meaning of section 2302, Rev. St. This being so, he strenuously contends that the plaintiff could not surrender the same except by deed or conveyance in writing subscribed by him, and that, as such surrender was a part of the consideration of the promise sued upon, he improperly recovered. The power to surrender such interest, however, is not thus limited by that section. As applied to this case, it reads: “No estate or interest in lands * * * shall be * * * surrendered * * * unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party * * * surrendering * * * the same.” Thus the section provides two ways of surrendering such estate or interest without any deed or conveyance in writing. One is by the acts of the parties concerned. The other is by “operation of law.” These two methods are frequently, and perhaps generally, present, and coalesce in the same transaction. Such surrendering is nothing more than the effectual yielding up of such estate or interest to one having the immediate reversion or remainder wherein such particular estate or interest may merge. To be effectual, however, such act or acts must be inconsistent with the continuance of such former estate or interest, and must, moreover, be actually accepted and acted upon by the other, and, in fact, all the parties concerned. When such acts and acceptance so concur, under such circumstances, the party thus surrendering is estopped from subsequently disclaiming the effectiveness of such surrender. These views are in harmony with numerous English cases. Whitehead v. Clifford, 5 Taunt. 518; Thomas v. Cook, 2 Barn. & Ald. 119; Hamerton v. Stead, 3 Barn. & C. 478; Johnstone v. Hudlestone, 4 Barn. & C. 933; Hall v. Burgess, 5 Barn & C. 332; Bees v. Williams, 2 Cromp., M. & R. 581; Nickells v....