Cheney v. Cook

7 Wis. 413 | Wis. | 1859

By the Court,

Cole J.

We do not deem it necessary at the present time to discuss in detail all the objections urged against the complainant in this case, and shall content ourselves with examining one or two of the grounds of demurrer which embrace the most serious questions arising at this stage of the cause. Some of the objections taken to a specific performance of the contract may be more properly considered when the answer and proofs are before us.

This action is brought to compel the specific performance of a contract set forth in the complaint for the sale and conveyance of real estate. The complaint alleges that the appellant on or about the 5th day of February, 1856, made and executed a written agreement bearing date upon that day, and delivered the same to the respondents, by which agreement the appellant agreed to sell the respondents from eighty to four hundred acres of land on the west and east side of Rock river, five miles north of the village of Jefferson, in Jefferson county, for twenty dollars per acre, and to receive in payment for the same, full paid stock in the Wisconsin Central Railroad Company, at par, and gave the respondents thirty days to determine how much, if any, and what part of the land they would take upon the terms specified, for value received. The respondents were to pay one thousand dollars in stock down, and the remainder in one year without interest. It appears the agreement provided that in case the respondents should not take the whole of the lands, that they should select what would be an average. The complaint alleges that the respondents within the thirty days notified the appellant that they had determined to take the whole quantity of land mentioned in the agreement, being about four hundred acres.

Although the agreement as set forth in the complaint is not very artistically drawn, yet we think there can be no difficulty in arriving at the intention of the party who made it. As we understand the purport and object of the agreement, it contained a written proposition made by the appellant for value received to sell such a quantity of land as the respondents might elect to take, from eighty to four hundred acres, the land lying partly on the east and partly on the west side of Rock river, and being about five miles north of the village of Jefferson, in Jefferson county, for a certain price per acre, if the proposition should be accepted by the respondents in thirty days. The proposition was a continuing offer made by the proposer for the time limited, and which probably he might have revoked at any time before it was accepted by the opposite party, but which when accepted as proposed, became a contract Boston & Maine R. R. vs. Babcock, 3 Cashing R., 224; 1 Parson’s on Cont. 403, and cases cited in the notes.

Now it is objected that this proposition or contract is void for not expressing the consideration, and therefore is not binding upon the appellant. And we are referred to § 8, Ch. 75, R. S., which declares that “ every contract for the leasing for a longer period than one year, or for the sale of any 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.” According to the agreement set forth in the complaint, the appellant for value received “ agreed to sell the land on the terms proposed in his offer, and we suppose these words, by the doctrine of numerous adjudged cases, must be held a sufficient expression of the consideration to meet the requirements of the statute. Day vs. Elmore, 4 Wis. R., 190. We have already stated that we understand the words “ for value received ” as used to express the consideration of the appellant’s contract. We do not think they can fairly and reasonably be said to relate to any other matter. Neither do we feel authorized to say that the complaint is bad because it alleges that the agreement was “ executed ” instead of averring that it was “ subscribed ” by the appellant The code requires that in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties; (§ 65,) and we should not be conforming to the spirit of this provision if we should hold that the complaint in this instance was bad for using the word “ execute” instead of the word “ subscribe.”

Again it is insisted that the court ought not to enforce the performance of this contract, because it is not signed by both parties. But we suppose it to be well settled under the authorities that a contract signed by only one party as against the party who signs it, will be enforced in equity as well as at law, notwithstanding the objection arising from the want of mutuality of remedy between the parties. Gleason vs. Bailey, 14 J. R., 484; McCrea vs. Purmort, 16 Wend., 460; Woodward vs. Aspinwall, 3 Sandf., R., 272. It is furthermore argued that the agreement described in the bill is unconscionable upon the face of it, and that to enforce a specific performance of it after the great depreciation which has taken place in railroad sureties, within the last year or two, would be most unjust and oppressive, more especially as the respondents took no steps to enforce the contract for a year or more after their rights, if any they had, became complete under it. “ There can be no doubt that mere delay to enforce a contract, apart from any default, may constitute a bar to a specific performance in equity, when it has resulted- in a change of the attendant circumstances of such a nature as to render it unequitable to enforce it.” White & Tudor’s Equity Cases, Vol. 2, part 2, notes to case of Seton vs. Shade, Pratt vs. Carroll, 8 Cranch 471; Anthony vs. Leftwich, 3 Rand. 238. Whether this is true in the present case can only be determined when the pleadings and proofs are all in, and it would be premature for us to express any opinion upon this point now.

The conclusion to which we have arrived is that the order of the circuit court overruling the demurrer to the complaint filed, is correct and must be affirmed.