170 Wis. 19 | Wis. | 1919
Lead Opinion
The following opinion was filed June 25, 1919:
There are 119 assignments of error argued under twenty-three separate heads, appellant’s brief" containing 300 pages. No at^mpt will be made to set forth in detail all of the questions raised on this appeal; they have all been considered, but only the more important will be treated.
The lands described in the contract are located in Ashland and Bayfield counties. The action was begun in Sawyer county, but was tried in the circuit court for Eau Claire county.
Sec. 2619, Stats., provides:
“The proper place of trial of civil actions is as follows, respectively:
“First. Of an action within one of the classes next following, the county in which the subject of the action or some part thereof is situated, viz.:
“(1) For the recovery of real property, or of an estate*32 or interest therein, or for the determination in any form of such estate or interest, or for an injury to real property.
“(2) ...
“(3) For the foreclosure, redemption or other satisfaction of a mortgage of real property.”
The action was begun in Sawyer county and no steps were taken to change the venue, so the action was properly triable in Sawyer county. West v. Walker, 77 Wis. 557, 46 N. W. 819. The question is, Can this action, properly triable in Sawyer county, be tried in Eau Claire county at a special term for Sawyer county, both counties being in the same circuit, said term being a general term for Eau Claire county, under the provisions of sec. 113.11, Stats., which provides that all business may be done at a special term which might be done at a term in the county where the business arises, except (a) the trial of issues by a jury, and (b) the trial of issues of fact in actions made local by law and arising in some county other than the one in which such special term is held ?
This action was one to compel specific performance and to enjoin the defendant from interfering with plaintiff’s exercising its contract rights and is therefore an equitable action and is not triable by jury'' It is not an action made local by sec. 2619, Stats., as the decree in this case operates not upon the land but upon the person. The court is not asked to pass title to anything by its decree. Its judgment is that the defendant perform its contract, or, in the event of its failure to perform it, that it do not interfere with its performance by the plaintiff in the manner specified in the contract.
The defendant’s next proposition is that the contract should not be specifically enforced because it contains within its provisions a remedy which the plaintiff should first exhaust before seeking the aid of equity. In view of what was said by the defendant in its letter of October 9, 1917,
In its answer the defendant alleged “that the defendant had expressly revoked, canceled, and terminated the said license, authority, and permission, and . . . that when this action was commenced said license, authority, and permission was no longer operative or in force, and for that reason is-not, and was not when this action was commenced, any longer subject to enforcement.” Under such circumstances the plaintiff was not required to go through the useless formality of attempting to enter upon the defendant’s lands.
It is next contended that the plaintiff has an adequate remedy at law and will not suffer irremediable injury if the contract is not enforced. In the statement of facts there has been set forth very briefly the facts found by the trial court upon which the conclusion is based that plaintiff’s legal remedy is inadequate. There must not only be a remedy at law, but that remedy must be plain and adequate and as practicable and efficient to the ends of justice and its prompt administration as is the remedy in equity. Miller v. Drane, 100 Wis. 1, 75 N. W. 413. Not only is the remedy inadequate as found by the trial court, but the principles applicable to a contract for the sale of lands should apply here. Where-competent parties have made a contract for the sale of lands which is reasonably certain in all its parts and not objectionable for unfairness or inequity, there is no room
The defendant further claims that the contract is too indefinite and uncertain to be capable of specific performance, both in its provisions relating to the defendant doing the work and in its provisions relating to plaintiff doing the work under the entry clause. •
Most of the uncertainties complained of, if such there
It is claimed that the entry clause contained in the contract is a mere license to enter upon and cut, and was therefore revocable and was in fact revoked before the commencement of this action. Without entering into a discussion as to the exact nature of the plaintiff’s rights under the entry clause, it is sufficient to say that in this case, under the facts found, the plaintiff’s rights were more than those of a licensee under a revocable license. Here, the plaintiff had' for seven years performed the contract in reliance upon this provision; it was a part of the consideration for the contract, a valuable part. Plaintiff has expended $100,000 in excess of the market price of the material which it has received in reliance upon the contract, <f ' which the right of entry was a material and substantial >art. To deny the plaintiff the right to enter upon the lands of the defendant and take therefrom that which it has purchased, would, as found by the trial court, inflict an irreparable loss upon the defendant and would amount to a fraud. The privilege here given was incident to a valid grant, is evidenced by a written instrument, is supported by a valid consideration, has been acted upon by the plaintiff, and is therefore not revocable.
It is argued that specific performance should be denied upon the facts found by the trial court, for the reason that specific performance of the contract would be detrimental to the public interest in that it would tend to foster a mo
Upon the whole case the plaintiff is clearly entitled to the decree of specific performance Of the contract. The contract is definite and certain, the legal remedies of plaintiff are inádequate, and valuable rights under the contract cart be preserved to it in no other way., The defendant entered into a fair contract and for many years it proved to be a very profitable one. Because the market price of the material covered by the contract has advanced, defendant seeks to be relieved of its solemn obligation formally entered into. If the contract were not one capable.of specific performance dhe defendant would have the power to terminate it, but being capable of specific performance it must perform the contract or submit to the legal consequences. Specific performance of the contract was properly decreed by the trial court. Heins v. Thompson & Flieth L. Co. 165 Wis. 563, 572, 163 N. W. 173; Kipp v. Laun, 146 Wis. 591, 131 N. W. 418; Curtis L. & L. Co. v. Interior L. Co. 137 Wis. 341, 118 N. W. 853; Daniels v. Bailey, 43 Wis. 566, 569; Pomeroy, Contracts (2d ed.) sec. 6; Watefman, Spec. Perf. § 15; St. Regis P. Co. v. Santa Clara L. Co. 173 N. Y. 149, 65 N. E. 167; S. C. 186 N. Y. 89, 78 N. E. 701.
The court having taken jurisdiction for the determination of the equitable issues involved, also determined ánd awarded damages which had been sustained to the time of judgment. This was correct and clearly within its power.
The contract of October 26, 1909, contained the following provision:
“Said first party [defendant] does hereby agree to sell to the party of the second part [plaintiff] the timber, logs and pulp wood- hereinafter described, cut said timber into logs and pulp wood, load said logs and pulp wood on the cars, and deliver the same to party of the second part at Grand View on the Ashland division of the Chicago, St. Paul, Minneapolis & Omaha Railway.”
The logs were hauled to Grand View by the Superior & Southeastern Railway Company. At the time the contract was entered into there was a local rate on the Superior & Southeastern Railway, from the point where the logs were loaded, to Grand View, of $1.25 per thousand feet. Contemporaneously with the’making of the contract of October 26, 1909, the plaintiff, the Superior & Southeastern Railway Company, and the Omaha Company entered into a contract for a joint rate by which the logs were to be transported from the loading point to Eau Claire and delivered to the plaintiff for four cents per hundredweight, which was to be apportioned between the Superior & Southeastern Railway Company and the Omaha Railway Company, the Omaha Railway Company receiving two and one-half cents and the Superior and Southeastern Railway Company one and one-half cents per hundredweight. During the seven years that the contract was performed the Omaha Railway Company ’ collected from the plaintiff freight at the rate of four cents per hundredweight. One and one-half cents per hundredweight was charged to defendant and deducted from time to time from the amounts owing by the plaintiff to the defendant, the defendant under the contract being required to pay the freight on the logs to Grand View, the junction point of the Omaha Railway Company. The trial court
Defendant contends that it ought to be required to pay no more than $1.25 per thousand feet, the local rate to Grand View. It appears that the rate of one and one-half cents per hundredweight amounts to $2,085 per thousand feet. The contention of the defendant is tliat the publication of the contract rate had no effect upon the local rate and that it should be charged no more than the local rate. The local rate from Grand View to Eau Claire on the Omaha Railway is 3.55 per hundredweight. If the plaintiff were required to pay the sum of the two locals it would have been compelled to pay a sum in excess of four cents per hundredweight. While the contract of October 26, 1909, does not specify the rate which the defendant, was required to pay for delivery of the logs at Grand View, the conclusion of the. trial court that the agreement to deliver the logs at Grand View amounted to an agreement to pay the freight as speci
It follows from what has been said that the order granting a preliminary injunction was right and should be affirmed.
By the Court. — Judgment and order appealed from affirmed.
Rehearing
The appellant moved for a rehearing, and the following opinion was filed November 4, 1919:
Appellant’s motions for rehearing are denied without costs, except clerk’s fees on both motions.
It is conceded upon the motion for rehearing in the main case that an error amounting to $951.28 was made in computing the amount of the judgment. This renders a modification of the mandate necessary. It is therefore ordered that the mandate be modified to read as follows:
“The order appealed from is affirmed. That part of the