Van Doren v. Roepke

• Decision Date: 12 October 1900
• Citation: 83 N.W. 754,107 Wis. 535
• Parties: VAN DOREN ET AL. v. ROEPKE ET AL.
• Court: Wisconsin Supreme Court

107 Wis. 535

83 N.W. 754

VAN DOREN ET AL.

v.ROEPKE ET AL.

Supreme Court of Wisconsin.

Oct. 12, 1900.

Appeal from circuit court, Shawano county; John Goodland, Judge.

Action by Jacob Henry Van Doren and another against John Roepke and another. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

This is an action for the specific performance of the following contract: “Memorandum of agreement made this 10th day of July, A. D. 1899, between Roepke & Meisner, partners, of Birnamwood, Wis., parties of the first part, and Van Doren & Andrews, parties of the second part, witnesseth, that the parties of the first part hereby agree to sell to the second parties the entire stock of merchandise now in their store, on lots 1 and 2, block 10, of the village of Birnamwood, and in transit on orders for goods made up to this date, provided the same cannot be canceled, and all store furniture, including counters, show cases, desks, tables, furnace, scales, etc., at cost price, not including freight, less 5 per cent. discount, and to transfer the insurance on building and stock now carried by parties of the first part. The above agreement is made in consideration of the purchase of the aforesaid lots 1 and 2, block 10, by the parties of the second part for the sum of $3,000. The parties of the second part agree to pay $1,000 for said stock of merchandise on the completion of the inventory of stock, and the balance in 60 days thereafter. Roepke & Meisner. Van Doren & Andrews.” The complaint, by apt allegations, sets out the making of the contract, and its delivery to plaintiffs, and offer to perform on their part, and a refusal of performance by defendants. A demurrer was interposed and sustained on the ground that the complaint did not state a cause of action. Plaintiffs appeal.Wheeler & Van Doren, for appellants.

B. A. Cady and Bump, Kreutzer & Rosenberry, for respondents.

BARDEEN, J. (after stating the facts).

The only question argued at the bar is whether the contract set out in the complaint is sufficient under section 2304, Rev. St. 1898. That section provides that every contract for the sale of lands or any interest in lands shall be void “unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.” This section has been before the court in many cases in which the requisites of the “note or memorandum” of the contract have been discussed. One of the latest expressions of this court on that question may be found in Harney v. Burhans, 91 Wis. 348, 64 N. W. 1031, where it is said: “It is not necessary that the memorandum should contain all the parts of the contract, or be formal. No matter how bunglingly it may be drawn, it will satisfy the statute of frauds if it contains all the essential terms of the contract, either by its terms or by reference to other writings, so that it will...