*1 challenge legal police to reach pro- back to otherwise cedures on the forth. dates set portion majority-
I further dissent from that of the suggests opinion which it was unfortunate experts express medical the state did not their opinions in insanity reference to the theories and tests- suggested by experts. the defendant and his medical experts
The medical response state’s testified questions inquiry to the Esser test— which limited the legal under the law of this state that was the test. If opinions of experts medical state’s would have been of certainly assistance to defendant he most could have reached them he cross-examination —this did not do. I know of no rule of law that makes it upon incumbent the state or express its witnesses to opinions beyond legal subject definition of the under inquiry. fairly
I believe the defendant was tried and convicted upon ample credible evidence and would affirm the judgment.
Bratt, Appellant, Respondent. Peterson,
May July 1, 1966. *3 appellant For there were briefs Donald J. Johns, Pappas Flaherty, Harman Crosse, all of La argument by and oral Mr. Harman. *4 respondent
For by was a brief there N. William Fugina, Kostner, Ward, Koslo and Galstad, Kostner & Arcadia, argument of all and oral La Vern Kostner. presented J. Three are issues on appeal: this Wilkie, 1. Is June 21st extension void under ? appellant estopped raising 2. Is a defense based on the statute of frauds ? vague
3. Is so and uncertain as to be unenforceable?
Since the case to comes us on demurrer we must pleaded assume that all in facts the amended answer are true.1
Statute
Frauds.
given
Consideration
determining
must
first be
to
whether,
general
law,
terms of
contract
there
awas
binding agreement between the Schnells and Peterson.
purchase
An
continuing
promise
is a
or offer
given by the landowner
to sell real estate to another
specified price
at a
specified
within
period
of time.2
ripens
binding
The offer
into a
“option
and irrevocable
contract” if
given,3
consideration is
but can be with-
any
acceptance
time
drawn
before
if not based on
“option
consideration.4
Once
contract” or offer is ac-
cepted, a contract of sale
standpoint
arises.5 From the
of contract
law “the
necessary
support
Gallagher
(1955),
Bolick
421,
(2d)
268 Wis.
860;
67 N. W.
(1953),
Mitchell v.
350,
Horicon
264 Wis.
59 N. W.
469.
(1903),
534,
Sizer v.
540,
Clark
116 Wis.
452 sell, proposal to expressed in the option need not be an 6 may proved aliunde.”
but be law, of contract question that no as matter There is pleaded, proven as case are the in the instant if facts initially and as agreement option both there was perform terms on its the to obligated seller extended that period. prescribed the option within were exercised if the however, the extension of the contends, that Appellant fatally it does not meet the because option defective is 240.08, Stats., frauds, requirements sec. of the statute “any the sale of requires a written contract which express It is to the in consideration. interest lands” comply with that the if a contract must that stat- settled nullity.8 void,7 comply, and a frauds does not it is ute of an “interest in land” purchase real estate is An meaning of 240.08.9 the sec. within argues is Appellant June extension based 21st The which is not recited. answer on new consideration 6 Purchaser, p. 503, Jur., sec. 32. See 17 and 55 Am. Vendor 91, Contracts, p. 434, (2d), is said: “The sec. where it Am. Jur. necessary support an need not be recited apart any requirement option agreement, the statute in the of frauds.” 7 writing. Every or sale to be in Contract for lease “240.08 any any in lands lands or interest contract . . . for the sale of note memorandum or some or be void unless contract shall writing thereof, consideration, expressing . . . .” be in 8 (1910), 314, 321, N. Henrikson v. Henrikson 143 Wis. 127 W. (1910), 304, 308, 937; 962; 142 125 Rowell v. Barber Wis. N. W. (*142, *149). (1860), Brandeis v. Neustadtl 166 Minneapolis, (1893), M. P. S. S. R. Co. v. St. Wall Wyman (1949), 48, 57, also v. Utech 56 N. 367. See Wis. W. (2d) 603; 234, 241b, v. W. Wis. Telford 172, 174, announced N. W. which Frost companion 240.06; regard F. Rosen to the rule in same (2d) 355, 364, berg Co. Elevator Goll Hughes 215, 216, Wis. N. W. Owens Lynch 812; (1904), 122 Kreutzer v. supra, page 540, Clark, footnote at which Sizer N. general. to be stated rule such *6 alleges supported by that the extension was new con- i.e., respondent’s refraining exercising from sideration — original option during one-hundred-day the period the consequences so that examine Schnell could the tax the of option sale. Failure of the extension of the to recite this new noncompliance consideration amounts to the with frauds, 240.08, Stats., statute of and would render the contract void if this attack on the contract available is to Bratt. suggested
It has been that no con- inasmuch as new required is even modify sideration in Wisconsin to a executory contract,10 requirements written the of sec. 240.08, Stats., would be satisfied as to the extension agreement by referring orig- back to the recitation of the option inal consideration in the of basic March 18th. This would be if true the same consideration con- were templated original for the option. extension for the as grounded But the extension was on new consideration and requirements to meet the of the statute of that new consideration agree- should be recited in the new ment. pleaded,
As the involve, instant case not does re- as spondent contends, continuing sell, a offer to founded on finally which offer extended is and is ac- cepted becoming binding thus parties contract toas both barring party claiming and a third on the basis of a later contract with the seller. The distinction is that here agreement there anis that the convey bound seller to the property to if Peterson Peterson exercised his agreement there is for an option. extension of the Insofar the statute of frauds agree- is concerned this ment based on option agree- is consideration and is an ment which involves an interest in land and must meet requirements of the statute. Eagle Refining Black Oil Co. Globe Oil & Co. (2d) 340, Wis. N. W. Miller v. Stanich N. W. 753.
Estoppel. invoking estopped Nevertheless, from Bratt is or non- Estoppel of action frauds.11 consists against estoppel part whom the one on the action reliance (Schnell-Bratt), which induces is asserted action or non- (Peterson), either the form of another (Peterson).12 the latter Un- action, to the detriment of pleadings, would in the the Schnells facts set forth der the stage proceedings, of the estopped, at least at this be claiming not 21st did meet the June extension from that 240.08, This is requirements Stats. because of sec. refraining respondent, by pleadings show provided exercising time within the the March 13th *7 investigate have time to the Schnells would that so ramifications, induced not to act to his detriment. was tax knowledge (Bratt) purchaser has of a facts Where estoppel against grantor give his rise to which would against estoppel may (Schnell), likewise be asserted early said in an case: him.13 As was “ by that which would ‘A man will be bound have quoad claims, subject under he bound those matter of the whom qui claim; sentit.commodum sentire onus; can, except in debet et and no man certain cases regulated by the which are statute law and law mer- right chant, transfer to another a better than he himself grantee possesses; than he who made the position not be in a better shall grant; privies and therefore 1 1 Foundry, Inc., Mfg. (1952), Door Pick General Co. 319, (2d) 407; (1951), Beranek 55 N. v. Gohr Wis. W. (2d) 50 N. Tesch Co. Elkhart Wis. W. Knauf 306, 316, Lake Sand & Gravel Co. 141 N. W. 701. Helgert (2d) 452, Estate of City County (1965), Milwaukee v. Milwaukee of (2d) 53, 66, 393. Moran Burmeister p. 815, Jur., Estoppel, the same 19 Am. 873. To effect see 158. blood, by take law and estate shall bound advan- be
tage Legal estoppels.’ Maxims, (marg. oí Broom’s p. 536.)”
Consequently appellant raising estopped be will a if it at defense is established underlying the trial that he was aware of all the circum- gave stances which rise to the June 21st extension. Appellant argues, however, respondent that cannot estoppel specific invoke the defense there no because is allegation in the answer Bratt that was aware these allege knowledge attendant details. But the failure to is not fatal for the reason under the circumstances it merely proved is element one which must be to establish estoppel pleaded. expressly Knowledge which was has indirectly alleged. been thus
Vagueness. Appellant also contends that the is void because vague Assuming deciding it is too and indefinite. without may ambiguities that there well option, be certain in the reading of the document discloses detail sufficient withstand an assault demurrer. The trial court is in position problem.15 a much better this resolve By the Court. —Order affirmed. (concurring). J.C. There be would no stat-
Currie, *8 problem ute of frauds here if Schnell had continued as owner and had not to after sold Bratt the date on which option Except the extension entered into. was this it would been option have immaterial whether the exten- sion was sufficient under statute the to create any an in land. interest Even without it 14 Sheboygan du & Fond Lac R. Co. Pfeifer (*155, *158). 167 Wagner (2d) Boek (2d) 15 See 916. continuing to offer a revocable constituted have
would offer of the within acceptance written and Peterson’s sell binding in a resulted period have would extension the original option, the ex- The purchase and sale. contract of together acceptance agreement, the written tension the meet all would contract which a constitute would is a well- frauds. It requirements of the statute by required the the memorandum accepted rule that writings.1 may consist of several of frauds statute original option and notice of title with Bratt took purchaser However, with as such option extension. by an estoppel, he would not be bound notice, absent to to Peterson outstanding of Schnell sell offer written as to create as an so had status offer unless such purchaser of an in the land. Notice interest an create not at least claim which does or instrument prevent not him from does equitable the land interest why necessary purchaser.2 This is it is being a bona fide extension of whether the issue to consider of frauds as an agreement void under was good though law a option, under contract continu- even ing offer sell. unrevoked Mr. Justice Beilfuss
1 am authorized state concurring opinion. joins in this Vesely (1958), (2d) 573, 580, Kovarik Kelly v. Sullivan Contracts, p. 283, 208; Williston, Restatement, 209; sec. Con 580; Corbin, Contracts, p. 744, (rev. ed.), p. and 2 tracts sec. 512. King (1921), Browne v. 111 Tex. S. W. Purchaser, p. 292, S., sec. 353. C. J. Vendor