Trimble v. Wisconsin Builders, Inc.
| Decision Date | 30 June 1976 |
| Docket Number | No. 648,648 |
| Citation | 72 Wis.2d 435,241 N.W.2d 409 |
| Parties | Eugene C. TRIMBLE, Respondent, v. WISCONSIN BUILDERS, INC., a Wisconsin Corporation, Appellant. (1974). |
| Court | Wisconsin Supreme Court |
Burton A. Strnad, Milwaukee, for appellant.
Thomas A. Bailey, Milwaukee (argued), Fricker & Bailey, Milwaukee, on briefs, for respondents; Janet P. Koerber, Milwaukee, filed brief on rehearing.
The jury in this case found that two writings, subscribed to by the plaintiff, E. C. Trimble, and Wisconsin Builders, Inc., by its president, R. D. Trebilcox, constituted a contract by which part ownership of a building erected by Wisconsin Builders was to be conveyed to Trimble. The trial judge declined to enter a directed verdict for the defendant and sustained the jury's verdict for the plaintiff. We conclude that the writings were insufficient under the Statute of Frauds and that a directed verdict and judgment should have been entered for the defendant. We reverse.
The facts adduced at trial show that Trimble obtained an option to purchase two lots, Lots 19 and 20, in Block 16 and located at 6914 West Appleton Avenue, Milwaukee. He paid $100 for the option, and it was agreed that the option could be exercised upon the payment of $18,500 on the day of closing, which was not to be later than June 20, 1965. Trimble testified that he thought this was a desirable site for the construction of a commercial building. He did not, however, have the funds to purchase the land or proceed with construction. He stated that he eventually spoke with Robert Trebilcox, president of Wisconsin Builders, who agreed to purchase the land and construct such a building if Trimble would assign the option to purchase to Wisconsin Builders and if, in addition, Trimble would do some troubleshooting for him on other buildings. For these services, Trimble was promised $500 a month. Thereafter, on May 3, 1965, and on May 5, 1965, respectively, Trimble and Trebilcox, ostensibly for Wisconsin Builders, signed two writings, which were drafted by Trimble.
The May 3 document, which is handwritten, provides:
On May 5, 1965, a document bearing the caption, "Waiver of Lien and Agreement," was signed by Trebilcox and accepted by Trimble. It provides:
This latter document utilized a waiver-of-lien form, which was modified, with the alleged intent to state an agreement between the parties. It was inappropriate for the purpose intended and poses the principal problem which leads us to conclude that the agreement did not satisfy the Statute of Frauds.
On May 5, the same day that the document above was executed, the owners of Lots 19 and 20 executed an agreement to purchase, which named Wisconsin Builders, Inc., and E. C. Trimble as buyers. The option rights originally owned by Trimble then became the joint property of Trimble and Wisconsin Builders. However, at the time the property was conveyed, pursuant to the agreement, the sole grantee was Wisconsin Builders. There was testimony at trial by the attorney for the sellers that Trimble directed that the deed was to convey the property to Wisconsin Builders only.
Wisconsin Builders, after the closing, arranged for the construction loan, undertook long-term financing, assumed all the insurance risks, and proceeded with the construction of the building. Trimble assisted in getting bids from subcontractors and performed some supervisory functions. During buildings owned and operated by Wisconsin Trimble received $500 a month to act as a troubleshooter, not only on this particular project but also in respect to tenant-land-lord problems that arose in respect to other buildings owned and operated by Wisconsin Builders. Wisconsin Builders, however, assumed full ownership and management of the building that was eventually constructed on the optioned property.
Trimble commenced his action, contending that the agreement consisting of the writings of May 3 and May 5, 1965, had been breached by Wisconsin Builders. Originally a conveyance of one-half of the equity in the building was demanded, but during the pendency of the action, Wisconsin Builders sold the property, and the parties, apparently by agreement, proceeded on the theory that Trimble was entitled only to damages measured by one-half of the equity.
The parties agree that the two writings can be construed together and that if any agreement exists it is the result of those two writings.
The defendant, Wisconsin Builders, denied that any agreement was entered into that intended to convey 50 percent ownership of the property at 6914 West Appleton Avenue and alleged that the writings failed to comply with the Statute of Frauds. It also posed other defenses, including the allegation that the alleged agreement was insufficiently certain and definite to constitute a contract even though it were found to be in technical compliance with the Statute of Frauds.
The defendant specifically pleaded noncompliance with the Statute of Frauds; and on its motion for directed verdict, it reasserted that defense. The trial judge chose, however, to disregard that motion and concluded that the only question was whether the contract was sufficiently definite and certain. This, he held, was a question for the jury.
The trial judge failed to file a memorandum opinion in respect to any of the motions made during the course of the trial or in respect to motions after verdict. We are, accordingly, hampered in our consideration of this case by the fact that we have nothing to show the basis of the judge's reasoning process or the factors relied upon in making his ultimate decision. We repeat the admonition which appears in Oremus v. Wynhoff (1963), 20 Wis.2d 635, 644, 123 N.W.2d 441, 445, 'that trial courts render written or oral opinions in all significant matters before them for decision.'
The defendant, Wisconsin Builders, Inc., relies on sec. 706.02, Stats., as the pertinent Statute of Frauds. This statute is not applicable to the instant case, for the agreements were entered into in 1965 and the applicable statute is sec. 240.08, 1963 Stats., which has since been repealed by ch. 285, Laws of 1969, which also created sec. 706.02. Sec. 240.08 provides
However, it was not inappropriate for the defendant, Wisconsin Builders, to place substantial reliance on sec. 706.02, Stats., because that statute represents at least a partial codification of prior Wisconsin statutory and decisional law. Sec. 706.02, in part, provides:
'(a) Identifies the parties; and
'(b) Identifies the land; and
'(c) Identifies the interest conveyed, and any material term, condition, reservation, exception or contingency upon which the interest is to arise, continue or be extinguished, limited or encumbered; and
'(d) Is signed by or on behalf of each of the grantors; and
'(e) Is signed by or on behalf of all parties, if a lease or contract to convey; . . .'
These requirements, by sec. 706.01, Stats., 'govern every transaction by which any interest in land is created, aliened, mortgaged, assigned or may be otherwise affected in law or in equity.' The contract, without question, falls within the statute. The agreement was for the assignment of an option, and allegedly Trimble was to receive a 50 percent interest in a building to be constructed. These are interests that fall within the terms of the statute.
The parties are identified, and the writings are subscribed to by all the parties who would be affected by a contract. We conclude, however, that the documents, even when read together, fail to identify the land and fail to identify the interest conveyed.
We should also state that both of the parties rely upon the law which is applicable under sec. 240.08 of the 1963 statutes to 'memoranda.' While the parties refer to the documents with considerable...
To continue reading
Request your trial
-
Zapuchlak v. Hucal, 75-638
...after the agreement in question was made, the statute in effect at the time of the agreement controls. Trimble v. Wisconsin Builders, Inc., 72 Wis.2d 435, 439, 241 N.W.2d 409 (1976). The statute in effect at the time of this agreement was sec. 240.08, Stats. (1961), which "Contract for leas......
-
In re Associated Enterprises, Inc.
...184, 262 N.W.2d 514 (1978) ("property referred to in memorandum must be described to a reasonable certainty"); Trimble v. Wisconsin Builders, 72 Wis.2d 435, 241 N.W.2d 409 (1976) ("contract or memorandum must be reasonably definite in respect to the property conveyed"); Wiegand v. Gissal, 2......
-
Lush v. F/V Terri, Civil No. 03-156-P-H (D. Me. 2/10/2004), Civil No. 03-156-P-H.
...and thus unenforceable pursuant to the statute of frauds and, alternatively, too vague to be enforceable); Trimble v. Wisconsin Builders, Inc., 241 N.W.2d 409, 415-16 (Wis. 1976) (agreement to sell real estate failed to satisfy requirements of statute of frauds and was, in any event, so ind......
-
Winger v. Winger
...in real estate are void unless there is a memorandum that conforms to the statute of frauds. Trimble v. Wisconsin Builders, Inc., 72 Wis.2d 435, 441, 241 N.W.2d 409, 413 (Wis.1976). Defendant perverts the reason for the statute of frauds and urges us to extend its application to this case t......