Durkin v. Machesky, 177 Wis. 595

Durkin v. Machesky

177 Wis. 595 | Wis. | 1922

The following opinion was filed May 9, 1922:

Jones, J.

The statute providing for the practice in civil court prescribes that in actions of this character the practice, pleadings, trials, judgments, and proceedings thereafter shall be governed by the provisions of law relating to circuit courts and proceedings therein. Sub. 2, sec. 14, ch. 549, Laws 1909, as amended by sec. 6, ch. 425, Laws 1911.

Under this law and sec. 2863, Stats., it was plainly the duty of the civil court to make findings as to each issuable fact. This rule was disregarded, and, as was said by the circuit judge, the findings “are so general and improper in their form as to be of little significance on this appeal.” Such general findings are not within the rule that the decision of a trial court respecting disputed matters of fact will not be disturbed on appeal unless against the clear preponderance of the evidence. Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603; Weinhagen v. Hayes, 174 Wis. 233, 178 N. W. 780, 785, 183 N. W. 162, 187 N. W. 756.

The statute regulating appeals from the civil court does not seem to require the circuit court to make findings of fact, and in this case none were filed, although there was *599a careful opinion. This makes it necessary for. us to consider the whole evidence and draw our conclusions as if no findings had been filed.

There was a direct conflict in the testimony as to the agreement when the first contract was rescinded, although both parties were agreed that it was rescinded by mutual consent. Defendant claimed that the automobile was forfeited by plaintiff because he desired to be relieved from the contract, and defendant relied on the receipt to support his contention. Since the writing was a mere receipt and not a contract it was open to explanation, and plaintiff's testimony that it was the real agreement that he was to- be given credit for the value of the car. in another deal seems the more reasonable, and as both the trial and circuit judge came to this conclusion, we have no difficulty in holding that this was the understanding between the parties.

It was argued by defendant’s counsel that the negotiations as to the second transaction ripened into1 a valid contract evidenced by the check given by plaintiff with the indorsement. It is claimed that the indorsement described the land with sufficient certainty to meet the requirements of the statute of frauds.

But we are satisfied that the description was too vague and uncertain to constitute a binding contract. It does not ■ appear whether one lot or more was intended. Counsel for defendant cite cases where parol evidence has been received to identify the land, but they are cases where some language was expressed in the writing to which parol evidence could be linked and the property identified with reasonable certainty.

If the writing had contained in addition to that used such words as “my property,” or “the property in my possession,” and if defendant had owned no other property, or had possession of none other at the place in question, or if some similar language had been used as a foundation for the parol evidence, a different situation would be present, and *600the rule, “that is certain which can be made certain,” might be invoked. Both the civil and the circuit judge found the description insufficient, and we are of the same opinion. Hannon v. Scanlon, 158 Wis. 357, 148 N. W. 1082; Harney v. Burhans, 91 Wis. 348, 64 N. W. 1031; Inglis v. Fohey, 136 Wis. 28, 116 N. W. 857.

The circuit court held, however, that the letters written by defendant’s attorneys and the subsequent payments made by plaintiff supplemented the void memorandum and sufficiently identified the property to satisfy the statute. The first of these letters was written about three months after the memorandum relied on as the contract. None of the letters was signed either by plaintiff or by the defendant. There is no evidence that defendant’s attorneys who signed the letters were authorized to make a contract of sale, nor is there any evidence that plaintiff assented to the letters. The payment of the $200 was quite as consistent with his claim that it was in compliance with the verbal communications as that it was an assent to the letter of January 15th. There was no partial performance by plaintiff, such as taking possession, that could satisfy the statute of frauds. It is doubtless true that a contract binding under the statute need not consist of a single document, and may be gathered from letters and other writings between the parties, so connected with each other that they may be considered as one document. But we do not think that the facts bring this case within that rule. It would be a somewhat dangerous rule that a so-called contract, void in its inception, could be given life by the mere subsequent request or demand by one- of the parties that it be complied with.' Such a rule would open the door to the very abuses that the statute seeks to correct. We have come to the conclusion that the circuit judge erred in holding that there was a valid contract. Koch v. Williams, 82 Wis, 186, 52 N. W. 257; Dodge v. Hopkins, 14 Wis. 630; Cunha v. Callery, 29 R. I. 230, 69 Atl. 1001.

*601We regard it as clear that when the negotiations for the second deal took place plaintiff had a credit of $700 to apply on the purchase of another piece of property. It is argued by defendant’s counsel that if he had any such credit he lost it by failing to complete the purchase in question. It is conceded that defendant sold the land in question to another party, and hence when the suit was commenced he had disabled himself to complete the negotiations. It is argued with some force, and the circuit judge took that view, that plaintiff abandoned any rights he may have .had. It must be conceded that the explanation made by plaintiff and his counsel for not giving more attention to the letters sent him is not as satisfactory as might be desired. But there are various facts which lead us to disagree with the conclusion of the circuit judge on this subject. It seems to us extremely improbable that the plaintiff would have intentionally forfeited $1,000 on a $2,500 trade.

There is testimony on which plaintiff relies for the delay on his part in closing the deal. He testified, although this was contradicted, that defendant never furnished the abstract agreed upon. There were negotiations and some differences relating to the manner in which the balance of the $1,800 should be paid, one party claiming that it should be cash and the other by mortgage. Plaintiff’s counsel testified that he found that there was an outstanding mortgage on the property. It seems clear to us that defendant received in these transactions, including the automobile; $1,000 for which he parted with no consideration. It is true some claim is made that the automobile became the property of defendant’s wife and that therefore he was not accountable for it, but in these transactions plaintiff was dealing with defendant and not with defendant’s wife. When the first negotiations were closed defendant receipted for the automobile in his own name, and we do not think that he can avoid liability on the ground that he had no right to give the credit claimed.

*602Unless it is plain that plaintiff voluntarily surrendered or lost by his negligence the $1,000 paid, it would be a serious injustice that he should bear the loss. Forfeitures are not favored, and the testimony does not convince us that 'he abandoned his rights. Even on defendant’s own theory that there was a valid contract it would have been more consonant with established and just procedure if, as indicated in the letters, he had had his rights and those of plaintiff determined by the court.

Since we have held that the contract relied on was void, it follows that the money and property paid were without consideration and the law implies a promise of repayment, since no rule of public policy or good morals has been violated. Helmholz v. Greene, 173 Wis. 306, 181 N. W. 221; Carlock v. Johnson, 165 Wis. 49, 160 N. W. 1053; Henrikson v. Henrikson, 143 Wis. 314, 127 N. W. 962; Brandeis v. Neustadtl, 13 Wis. 142.

There seems to have been no demand for the repayment of the money othér than the action. Interest should be allowed from the time of the commencement of suit. Harney v. Burhans, 91 Wis. 348, 64 N. W. 1031.

By the Court. — The judgment appealed from is reversed, and the cause is remanded to the circuit court with directions to award judgment in plaintiff’s favor for the amount claimed, with interest, 'as indicated in the foregoing opinion.

A motion for a rehearing was denied, with $25 costs, on July 8, 1922.