58 Wis. 390 | Wis. | 1883
It is evident that the written contract fixes or determines the rights and liabilities of the parties to it.
It appears that the subject matter of this contract of sale was some saw-logs in Marathon county and a quantity of agricultural college lands. The title .to these lands was in the state, but the usual certificates of sale had been given by the school-land commissioners to purchasers in 1869. On the 25th of September, 1878, the defendants agreed to sell these logs and lands to the plaintiff. There is no controversy about the logs. The plaintiff agreed to pay for the lands at the rate or price of one dollar per thousand feet for all the merchantable pine standing or uncut upon them. The contract declares the meaning of the word “ merchantable” as used therein. Manifestly, the parties intended that the logs should be scaled, and the timber standing on the lands should be estimated when the contract of sale was to be consummated according to its terms. No time, however, was specified within which these' things were to be done. But the court found that the timber on the lands was estimated some time in December, 1878, and all the parties notified thereof.
For a reason which is fully explained in the testimony, and which seems to have been perfectly .understood and agreed upon by the parties, the lands were suffered to be sold by the state on the 12th day of December, 1878, for unpaid interest and charges. They were bid in by Mr. Seott, who subsequently obtained the usual certificates of sale, he having .paid all charges and the interest up to January 1, 1879, but leaving unpaid $37 purchase money due the state on each
■ Now the plaintiff claims that the clause of the contract above quoted imposed upon the defendants the obligation to pay the interest on the certificates assigned for the year 1879, and as the lands were forfeited in consequence of the failure to pay such interest the loss falls upon them. On the other hand, it is insisted that the engagement was in the alternative either to pay the interest up to January 1,1879, at most, or only to an earlier date, in the event the sale should be perfected and “ closed” before that time. It is said the words “ to January 1, 1879,” are words of limitation, to fix a time beyond which the defendants were not bound to pay any interest, and were inserted for their protection, so as to secure the completion of the sale before that date.
It is a well-settled principle of law, when the obligation is in the alternative, as to do a thing on one day or another, or in one way or another, that the right of election is with the promisor, if there is nothing in the contract to control that presumption. 2 Parsons on Con., 656; Addison on Con., § 309; Smith v. Sanborn, 11 Johns., 59. It is apparent from the face of the contract that the parties expected when it was entered into that the sale would be “ closed ” or perfected some time prior to January, 1879. This is evident from the last clause. The principal on the old certificates became due at that time. And this clause provides
In the view we have taken of the contract it is unnecessary to notice the other points which were so ably discussed by counsel.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.