Clark v. Davidson

53 Wis. 317 | Wis. | 1881

Cole, C. J.

It.is quite evident that the plaintiff recovered ■ four dollars per day for the work of himself and team, one dollar and fifty cents for seed wheat, and seventy-five cents for seed oats, which were used on the farm, and pay for improvements made, in pursuance of the special contract made with the administrator. That was the rate of compensation agreed upon in that contract, which the referee and circuit court found was made. But the difficulty with this aspect of the case grows out of the fact that this special contract, as we understand the testimony and findings, forms a part of the original parol agreement for the sale of the farm. That agreement was plainly void under the statute of frauds. If the special contract as to the price to be paid for the labor of the plaintiff and team per day, and for the seed grain, constitutes and forms, as we think it does, a part of the original parol agreement for the sale of the real estate, we cannot see how there can be any recovery upon it. The whole contract, being entire and indivisible, falls to the ground. At first we had some doubt as to whether the contract for labor, etc., formed such an essential part of the original parol agreement in regard- to the sale of the farm, that it might not be separated from it' and stand by itself. We are, however, satisfied that it cannot be. The contract, as to the compensation the plaintiff was to receive for his labor,'etc., was connected with the original parol agreement for the purchase of the farm for $2,985, on the terms agreed upon. These different stipulations were really inducements or in the nature of considerations for each other.

It- is true, the plaintiff first went into possession about the third of April, 1874, under the parol contract to purchase. But when it was found that there were difficulties in the way of the administrator making title, then this agreement as to compensation for labor, etc., in the event the plaintiff failed to obtain the farm, was added to or grafted upon the original agreement. The contract, therefore, upon which the plaintiff relies to recover compensation at the rate of four dollars per day for the labor of himself and team, and the price for the seed grain used, being a part of the parol agreement for the sale of, the farm to him, was void because not in writing. Consequently there could be no recovery upon it.

The court found that, without any fault either of plaintiff or defendant, the plaintiff failed to get title to the farm, and that it was subsequently conveyed to a third party. But the plaintiff seems to have gone into possession in good faith, relying on the agreement to obtain the title as purchaser; and he claims to have made repairs and valuable improvements upon the farm during the -season he occupied it. It would seem that he was justly entitled to a fair and reasonable compensation for his labor and improvements made under such circumstances, over and above the value of the crops grown upon the farm, which he used, and the use of the buildings, pasturage, etc. We cannot, however, assume that the recovery would have been the same had the plaintiff proceeded on a quantum meruit. On the contrary, the evidence tends strongly to show that the amount which he did recover was more than a just and reasonable compensation for his labor, repairs and improvements over and above what he should be charged for the use of the place and crops appropriated, to his own use. The intention seems to have been to compensate him “liberally.” But there was no reason for allowing him more than a just and fair compensation. He knew he was dealing with an administrator, and was willing to take the chances of obtaining a title. Assuming that both parties acted in good faith, with full knowledge of the facts, there is certainly no equity in allowing the plaintiff’s claim above what is just and fair. We shall not go into any examination of the account as stated. There will necessarily have to be a new accounting, in part at least, upon the principle above indicated. We remark, in respect to the item of $45 paid by plaintiff for plowing done the fall before he went into possession, as the payment is not denied, the sum' should be allowed. We say nothing about the other disputed items.

The learned counsel for the defendant insists that because the plaintiff went into possession, worked the farm and made improvements under a void parol contract, he should not be permitted to recover even for the value of such improvements, etc. But we do not see any substantial ground for distinguishing the case from one where the purchaser has paid a part of the consideration money on a contract for the sale of real estate which for some reason fails. In the latter case this court has approved of the doctrine which allows the purchaser, after a demand, to maintain an action to recover back what he has paid. Brandeis v. Neustadtl, 13 Wis., 142; Thomas v. Sowards, 25 Wis., 631; N. W. U. P. Co. v. Shaw, 37 Wis., 655. This case would seem to stand upon the same principle. The demand is a meritorious one, if the plaintiff did in fact perform labor upon the farm and make valuable improvements which exceeded the value of the use and crops received.. He may not maintain an action on the special void contract, but there is no valid objection that we can see to his recovering on a qucmtum meruit. '

Ve think the judgment of the circuit court must be reversed, and the cause be remanded for further proceedings in conformity to this opinion.

By the Court.— So ordered.