112 Wis. 129 | Wis. | 1901
The principal difficulty we have experienced in deciding this case has arisen from the ambiguous, if not inconsistent, language employed in the “ whereases ” or recitals contained in the bond, set forth in full in the foregoing statement. To ascertain the true meaning of such language, regard should be had to the relation of the parties named and the object or purpose to be secured by the parents in giving the deed of the farm to the defendant and taking back from him the bond and mortgage. There is no dispute but that at the time of the execution of the conveyance, August 27, 1883, the farm was worth $5,000, and that the defendant was to pay that amount for it. He claims that he did secure the payment of $1,000 of that amount at the time he received the deed by giving to the plaintiff his two notes of $500 each, which he paid a few months after-wards. The remaining $4,000 was to draw interest at the rate of seven per cent, per annum, payable semi-annually to the parents and to the survivor of them. Such payments of interest amounted to $140 every six months, or $280 a year. No part of the principal sum was to be paid until five years after the date of the bond; and then $2,000 of the principal sum was to be paid to the parents and to the survivor of them. No part of the other $2,000 of the principal sum was to be paid until after the death of both parents ; and the $1,000 of that amount here in question was
The question recurs whether the defendant is to escape such payment by reason of such release of the mortgage. Gottlieb never surrendered the bond to the defendant. The manifest purpose of the parents, as disclosed in the transaction, was to secure to themselves, in addition to the wood mentioned in the bond, a stated income, to be paid to them and the survivor of them, semi-annually, so long as either of them lived, and $2,000 of the principal sum at the expiration of five years from the date of the bond; and that the balance of the $5,000 consideration of the farm should go in the manner indicated to their two daughters and their husbands, respectively. Counsel contends that, if the $1,000
“ It is the settled law of this state that when one person, for a valuable consideration, engages with another (whether by simple contract or by covenant under seal) to do some act for the benefit of a third person, the latter may maintain an action against the- promisor for breach of the engagement. After knowledge of and assent to such engagement by the person for whose benefit it is made, his right of action on it cannot be affected by a rescission- of the agreement by the immediate parties thereto.” Bassett v. Hughes, 43 Wis. 319.
See, also, Grant v. Diebold S. & L. Co. 77 Wis. 75; Fulmer v. Wightman, 87 Wis. 573; Enos v. Sanger, 96 Wis. 150; Stites v. Thompson, 98 Wis. 331; New York L. Ins. Co. v. Hamlin, 100 Wis. 23; Kuhl v. C. & N. W. R. Co. 101 Wis. 56; Lessel v. Zillmer, 105 Wis. 338. There is evidence that Augusta and the plaintiff knew that the agreement between the defendant and the parents had been made, and that she assented to the agreement, as found by the court. The propositions stated are peculiarly applicable to the case at bar. The defendant took a conveyance of the farm, and agreed to pay the $1,000 in question as a part of the purchase price. He never paid it, nor any part of it; certainly not to Augusta, nor to anyone acting for'her. The release mentioned did not discharge the defendant from such obligation, and is no defense. Besides, under the rule of law stated and the fact found, Gottlieb had no authority to discharge the defendant from such liability to Augusta.
By the Court.— The judgment of the circuit court is affirmed.