65 Wis. 415 | Wis. | 1886
The answer and reply need not be considered, since the only questions presented upon this demurrer
The agreement in writing to convey, in effect, acknowledged the receipt of the $100 as part purchase money, ior forty-nine acres of land, with buildings and improvements thereon, situated in the town of Wauwatosa, state of Wisconsin, being the same then occupied by the defendant, for which she thereby promised to deliver deed in sis weeks. The agreement was to convey the land, buildings, and, improvements then occupied by her in the town named. It was the land then so occupied, and the whole of it, that was to be conveyed. No reference was made in the writing to any land not so occupied at the time. Such occupation, so referred to upon the face of the agreement, purported to be an existing extrinsic fact, the proof of which would give certainty to the description. Simmons v. Johnson, 14 Wis. 526. Such proof was .admissible in order to place the court in the position of the parties at the time of making the agreement, and thus enable it to intelligently'''interpret the language employed. The law will not declare an agreement void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain. Messer v. Oestreich, 52 Wis. 689; Whitney v. Robinson, 53 Wis. 314; Parkinson v. McQuaid, 54 Wis. 484; Meade v. Gilfoyle, 64 Wis. 18. A description which can thus be made certain by proof of an extrinsic fact referred to in the agreement must be regarded as sufficiently certain to enforce specific performance.
But the more serious question is whether such mention is tp have the effect of a written guaranty or covenant that the farm so occupied did in fact, at the time, contain the number of acres mentioned. The defendant insists that the mention of the number of acres cannot be regarded as a
Assuming the plaintiffs’ right to specific performance and abatement of price on account of deficiency, as claimed, still they would not be entitled to any more favorable rule than the one just indicated; that is, an abatement of such fractional part of the whole consideration to be paid as the value at the time of the purchase of the piece to which the title failed bears to the whole purchase price. It stands confessed that the buildings and improvements are all on the land owned by the defendant, and it would be unfair to presume, in the absence of any allegation of proportionate values, that the portion of the land not improved is of equal value per acre with that which is improved. Such is the theory of the complaint and the conditions upon which specific performance is sought to be enforced. The plaintiffs having failed to allege performance or tender of performance on their part, even upon the assumptions indicated, are in no position to enforce performance upon the part of ■ the defendant.
By the Court.— The judgment of the county court is affirmed.