Bitof v. Hoppe

186 Wis. 409 | Wis. | 1925

Eschweiler, J.

If the testimony of the defendants were true, there were material and false representations made by plaintiffs and on their behalf as to the nature of the soil of the Clark county farm, the condition of its buildings, the amount and size of the trees on the same, and if believed by the trial court would have required the dismissal of the complaint and the granting of the defendants’ counterclaim.

There was testimony, however, flatly contradictory of that given by the defendants in regard to such matters, and, in our judgment; from an examination of the record, we can find no ground for setting aside the conclusion of the trial court, before whom such witnesses testified, that the plaintiffs’ version of the transaction should be believed rather than that of defendants.

There was here admittedly signed by the defendants a clearly expressed written contract whereby the two parties bound themselves to a present exchange of their respective holdings upon clear and definite terms. The defendant Joseph Hoppe, on cross-examination, admitted that the terms therein expressed were discussed and agreed upon as the basis of the transaction between them prior to and at the time of the signing of the document. The testimony is clear and convincing that the document was read and explained to the defendants at the time they signed. We think the court was fully warranted in holding as he did that the’ defendants did know and understand that it was a present contract at the time they signed.

Defendants had known the mutual agent, Schwartz, for many years and were on very friendly terms with him, and disclosed to him their desire to dispose of their Racine property because of their inability to provide the necessary money to meet the interest due and charges for the improvements. The defendant Joseph Hoppe had been a farmer for fifteen years prior to this time and on a farm in Adams county a short distance to the southeast of Clark county, and, according to some of the testimony, declared a familiarity with the farms in plaintiffs’ vicinity. It further appeared that the defendant Joseph Hoppe before visiting plaintiffs’ farm had made up his mind to withdraw from the transaction and so announced to their mutual agent, Schwartz, so that the trial court might well have reached the conclusion that the desire by defendants to repudiate the transaction was upon other grounds than those subsequently relied upon in the pleadings, and which conclusion might well substantially lessen the weight to be- attached to defendants’ testimony as to any alleged representations having been made.

Defendants contend that the court erred in permitting the plaintiff to testify that he was ready, able, and willing at all times to make the transfer on his part and in the finding of such readiness and ability. There is no force to this contention, and the rights of the defendants are fully protected by the terms of the judgment, which requires a conveyance by plaintiffs as a condition for the conveyance by defendants, and in case of dispute between the parties as to the terms of such mutual conveyances the matter was still open for further disposition by the trial court.

Appellants also contend that the court erred in refusing to receive, subsequent to the trial, an alleged certificate from the clerk of the circuit court for Clark county purporting to be a recital of what his examination of the court records disclosed as to certain still unsatisfied judgments against a prior owner of the Clark county farm, it being offered by defendants for the purpose of showing other liens on such farm in addition to the specified mortgage liability which defendants were to assume; there being otherwise uncontradicted testimony on the trial by plaintiffs to the effect that such judgments or liens had been paid.

That which was so offered was a letter of May 5, 1923, to defendants’ attorney by the clerk of the court, and recited that certain judgments are still unsatisfied of record. This offer is attempted to be justified under sec. 4140, Stats. This .section in substance provides that as to records, papers, or files in or concerning any action or proceeding in any court of the state, copies thereof, being certified by the clerk having legal custody of the original to have been by him compared with the original and to be a true copy thereof, such certificate, having affixed the seal of the court or of such officer, if any be required by law to be kept, shall be received with like effect as the original.

The document offered did not on its face purport to be more than a recital of what the writer thereof found by his examination, had no proper certificate nor any seal attached. Such letter was clearly inadmissible. Reed v. C., M. & St. P. R. Co. 71 Wis. 399, 402, 37 N. W. 225.

Defendants having expressly declared their refusal to be bound by the contract, a formal tender to them would have been an idle ceremony and therefore an unnecessary formality, and their objection on that score is without merit. Russell v. Ives, 172 Wis. 123, 126, 178 N. W. 300.

By the Court. — Judgment affirmed.