Benson v. Cutler
53 Wis. 107
Wis.
1881
Check Treatment
Cole, C. J.

We concur with the learned circuit judge in most of the findings of fact in this case. To our minds the evidence is perfectly clear and conclusive that Benson went into possession of the premises under his contracts as purchaser, *113and made valuable improvements. There can be no doubt that the contracts were valid, and operated to secure a conveyance of the land by the defendant on the performance of their conditions by Benson. The instruments made the time of payment of the sums therein specified to be paid, of the very essence of the contracts; but the circuit judge found that the defendant waived a strict performance of the contracts in this respect, and gave an unlimited day of payment to Benson in his life-time, ándito the plaintiff since his decease; and there is ample testimony to support that .finding. The question, then, arises, Is there anything in the attending circumstances which would render it inequitable to enforce a specific performance of the contracts? For the law is well settled, that a specific performance of a contract of sale rests largely in the sound discretion of the court, upon a view of all the circumstances.- Williams v. Williams, 50 Wis., 311. And the learned counsel for the defendant insists that the contracts should not be enforced for the reason that it appears from the evidence that they were cancelled, and all rights under them voluntarily abandoned, and the premises surrendered, by the arrangement of November 4, 1875, so as to make it inequitable to enforce them. We have carefully considered all of the evidence relating to that transaction, including the testimony of the defendant himself — which is of doubtful competency, and certainly should not receive the same degree of credit it would be entitled to were Benson alive to contradict it, if untrue; and we think it does not sustain this position of counsel. We shall not go into a discussion of the evidence in detail, but merely state that in our judgment it entirely fails to show that the contracts were at that time or at any other mutually abandoned, and the premises surrendered to the possession of the defendant. Indeed, the letters alone which were written by the defendant to Benson after that transaction, about the property, prove most conclusively that both parties regarded and treated the contracts as being still in force. *114Eenson continued to improve the property, and the defendant aided him by looking after the work, and, in some instances, settling with mechanics, as this correspondence shows. We see nothing growing out of the delay in making payments, or in any change of circumstances, which renders it uneonscien-tious to enforce performance. Wé therefore fully agree with the circuit court in the conclusion that the plaintiff will be entitled to a conveyance upon paying the amount justly and equitably due upon the contracts.

But the circuit court held that the defendant was not entitled to any pay or compensation for any improvements put by him upon the property after August 15, 1877. This was doubtless upon the ground or for the reason that whatever improvements the defendant put upon the property subsequent to that time were made in bad faith and in his own wrong. There are cases which hold that where a party wrongfully retains the title and possession of property whicli he knows he ought to convey to another, he is denied pay for his improvements. Waterman v. Dutton, 6 Wis., 265; Thompson v. Thompson, 16 Wis., 91. We do not, however, think the facts of this case bring it within the rule above stated. It is admitted that the amount due on the contracts has not been paid in full. Some of the buildings on the property were in an unfinished condition and untenantable. Erom the spring of 1872 to the time of his death, in May, 1877, Benson had been living in Chicago, and the defendant had been looking aRer this property for him, collecting rents, and seeing to the improvements which were being made upon it. We infer from letters written Benson by the defendant, especially the one dated March 20,1877, that the former had applied to the latter for a loan of money to complete these buildings. It was surely for the benfit of the estate that this should be done. The defendant might reasonably have concluded that it would be for the advantage of all concerned that he should make the improvements which he did make. Certainly there is no evidence of *115bad faith on Ms part in making them, nor any ground for say* ing that he was attempting to improve the plaintiff out of her property. Re doubtless did what he thought was for the best under the circumstances. There was more or less uncertainty about the intention, or at least the ability, of the plaintiff to pay the amount justly due on the contracts so as to be entitled to a conveyance. True, she says that in their conversation in August, 1877, she told him she did not want another dollar of improvements put upon the property; that she would in some way raise 'the money and pay up what was due on the contracts. But, considering her limited resources, the defendant might well have supposed that it would be some time before ■she could do this, and that it would be better to have the buildings completed so that they could be rented. Consequently, ■ under the circumstances, we deem it' fair and equitable that he should be paid the actual value of such improvements as he himself made out of his own funds after August, 1877. Of course, he should be charged with all the rents which he has received and not accounted for. We barely indicate the basis for stating the account between the parties.

In one other particular we are disposed to differ from the view taken of the ease by the court below; it is in respect to the item of $560 building material which was put into the property in the fall of 1875. Row, as we understand the tes* timony, that material was actually furnished and paid for by Benson himself. Bor some purpose, not clearly disclosed, Benson went through the form of executing two bills of sale of that material to the defendant for a consideration of $560. The defendant says in his testimony that he paid for it in cash. We have already said, if his testimony was competent to prove the fact — a question we do not wish to be understood as deciding, — it is not entitled to the same credit it would be were Benson alive to’ give his version of the transaction. Unless the defendant did actually pay for this material, we^ee no reason for allowing him a credit for that amount in the account. *116Upon the proofs in this record we are clearly of^the opinion that defendant is mistaken when he says that he paid for this material in cash, and that he never did in fact pay a cent for it. We see no reason for allowing him credit for it in the account unless he did pay for it in cash, as he says. True, the plaintiff did not appeal from the finding of the circuit court in respect to that item; but, as the whole account must be restated and all errors corrected, we deemed it proper to express our views as to that item.

Without noticing in detail the many questions discussed by counsel, we have concluded to consider the case on the merits. Our conclusion is, that the judgment of the circuit court must be reversed, and the cause remanded for further proceedings in accordance with this opinion.

By the Court.— So ordered.