Zimmer v. Becker

• Decision Date: 21 September 1886
• Citation: 66 Wis. 527,29 N.W. 228
• Parties: ZIMMER v. BECKER, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

66 Wis. 527

29 N.W. 228

ZIMMER

v.BECKER, IMPLEADED, ETC.

Supreme Court of Wisconsin.

September 21, 1886.

Appeal from circuit court, Washington county.

The parties entered into a contract in writing under seal, wherein the plaintiff agreed to sell, and the defendants jointly to buy, several parcels of land for the aggregate price of $4,800. Of this sum $3,200 was to be paid in cash on a certain specified day, and the defendants were to assume and pay an outstanding mortgage on some portion of the land, given to secure $1,600, which made up the residue of the purchase money. The damages resulting from the failure of either party to perform the agreement were limited therein to $500. As between the defendants, outside the written agreement, they were not joint purchasers of any of the land covered by the agreement. The defendant Becker was to pay $1,750 for a 40-acre tract which was to be conveyed to him, and the defendant Funk was to pay the balance of the agreed price for the remainder of the land, which was to be conveyed to him in severalty. This was not embodied in the written agreement, and the plaintiff was not a party to the arrangement. At the time stipulated for the performance of the agreement the defendant Becker was ready to perform on his part, but the defendant Funk was not. Becker thereupon paid the plaintiff $1,750, and the latter conveyed to him the 40-acre tract which he was to have under the arrangement with Funk. The plaintiff gave Funk a few days' additional time in which to perform the residue of the agreement between the three parties. Funk again failed to perform at the stipulated time, and the plaintiff demanded performance by Becker, who then refused to take the residue of the land. Pursuant to subsequent negotiations, the conveyance of the 40-acre tract was destroyed, and the plaintiff conveyed to Becker all the land covered by the original agreement, for the consideration of $4,400; being $400 less than the original contract price.

This action was brought by the plaintiff against both defendants to recover damages for a breach of their agreement to pay $4,800 for the land. The foregoing facts are established by the pleadings and uncontradicted testimony, or, at least, by the testimony of the plaintiff. The defendant Funk made no appearance to the action, and judgment went against him by default. Becker answered, and defended the action. The testimony given on the trial tended to prove that the defendant Becker refused to perform Funk's part of the contract on the ground that he was no longer liable thereon, and that one consideration of the contract by which Becker purchased the residue of the land was that the plaintiff should release him from any further liability on the original agreement, and look to Funk alone for his damages for the breach of such agreement. The jury were instructed that, if such release was a consideration for that purchase, it was a valid agreement, and the defendant Becker was not liable in the action; otherwise the plaintiff should recover. The jury found for the defendant Becker. A motion for a new trial was denied, and judgment for Becker was entered pursuant to the verdict. The plaintiff appeals from the judgment.H. W. Sawyer, for appellant, Mathias Zimmer.

H. K. Butterfield, for respondent, Philip Becker, impleaded, etc.

LYON, J.

Under the instructions of the court, the verdict for the defendant Becker is necessarily a finding that, in the contract by which the defendant Becker purchased the residue of the land included in the original agreement between the plaintiff of the one part, and the defendants Becker and Funk of the other part, the plaintiff agreed that Becker should be released from further liability by reason of the previous breach of that agreement, and that he would look to Funk alone for his damages therefor. The verdict is amply sustained by the testimony. The fact that such release was stipulated is therefore a verity in the case. If it is a valid release, this action cannot be maintained against Becker. Whether it is valid or void is the controlling question in the case.

The release was part and parcel of the adjustment of a controversy between the parties to it. The plaintiff claimed that the defendant Becker was liable, with Funk, to respond to him in damages for the failure to pay the agreed price for, and take a conveyance of, all the lands included in the original agreement between the three parties. The circuit court correctly held that primarily he was so liable. But, when the time arrived for the execution of that agreement, the plaintiff accepted money, which, as between the defendants, Becker ought to pay, and conveyed to him the land which, as between the defendants, Becker was entitled to. He also gave Funk further time to perform the residue of the agreement, which, as between him and Becker, Funk alone ought to perform. This being the condition of affairs when the plaintiff...