126 Wis. 390 | Wis. | 1905
The main questions in controversy on Gall’s appeal are, first, whether the suit for breach of contract commenced in December, 1901, by plaintiff, and her subsequent action in accepting and receiving benefits under the contract, amounted to an election of remedies on her part so as to bar the present suit; and, second, If such was not an election of remedies, do the findings of fact warrant the judgment, and are they sustained by the evidence ?
But it is claimed that the subsequent breaches upon which1 the present action rests existed and were known to plaintiff when the former action at law was brought, and that if such action was not an election of remedies, in connection with the subsequent conduct of plaintiff in receiving payment under the contract with knowledge of the facts, it did constitute such election. We are unable to come to this conclusion. The •court below found that the previous legal action constituted an election of remedies on the part of plaintiff for any breaches •occurring prior to December, 1901, of which she had knowledge, and that in the present action she was left free to prove any breach that occurred subsequent to the commencement of the prior action. The case before us was tried in the court below and determined upon the theory that only breaches subsequent to the commencement of the prior action formed the ■grounds of judgment, and that substantial breaches occurred after the commencement of the former action. The record in the former action shows that it was brought to recover annual payments due to plaintiff under the contract, and that the question of option on the property was neither litigated nor considered, and it does not appear that it was known to plaintiff at the time. While given in October, 1901, the evidence does not establish that plaintiff had actual knowledge of it, and it was not recorded until January 5, 1903. Nor do we think the acceptance of annual payments made after the commencement of the prior action should in any manner prejudice the plaintiff’s rights in the present action. She was entitled to presume after determination of such prior action that the defendant Gall would perform on his part, and the fact that shé attempted to abide by the contract should not prejudice her rights in the present action on account of subsequent
It is also argued that tbe intended sale of tbe farm was not to relieve tbe son of further liability to support and care for .bis aged mother, but to better tbe condition of both. Yet it •does not appear that any provision was made in tbe option or deed for tbe mother’s security in such improved condition or otherwise, and from past experience, and tbe existing condition when she began this suit, she bad a right to believe that her welfare might not be considered. We do not regard tbe argument of counsel on this point persuasive, nor do we think tbe contention that tbe court must not look at tbe record on 'former trial of decided weight, because it was necessary, to some extent at least, to look into it on accounting, if for no ■other purpose. We are satisfied that tbe findings support tbe judgment on tbe ground of breaches occurring after tbe former suit, and that such findings are supported by ample evidence independent of tbe record of tbe former trial. Tbe evidence shows that there was failure to deliver articles agreed to be furnished annually, besides tbe evidence concerning substantial breach by tbe option sale and delivery of tbe deed in escrow, as well as failure to furnish care and attention clearly contemplated by tbe contract. Tbe relations existing between mother and son were such as to plainly show that she need expect no care or attention such as should be furnished under the contract. Nor does it appear that plaintiff was responsible for tbe breaches. Tbe son, though bound by contract, if
It is further urged by counsel that, even had Patterson known of the agreement existing between defendant Gall and plaintiff, his security could not be impaired unless he knew that the agreement was broken and that plaintiff had reason or grounds for bringing the suit to set aside the deed. This contention cannot be sustained. If defendant Patterson knew of the agreement, he knew, or was bound to know, that defendant Gall had only an estate upon condition subsequent, and that he could get no greater interest through his mortgage than defendant Gall had, and that, whenever GalVs estate was defeated for condition broken, plaintiff became repossessed of' her former estate. Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118. Upon accounting defendant Gall was allowed all claims paid under his agreement with plaintiff, and also interest on the mortgage debt existing at the time of the execution of the deed by plaintiff to him, together with the value of the improvements made upon the premises, and defendant Patterson by the judgment was given an absolute lien for $630, amount of the lien existing under the prior mortgages, and, in addition thereto, the balance of his mortgage interest was made a> lien upon the premises for the amount found due defendant Gall on accounting, subject to the plaintiff’s costs in the present action. Defendant Patterson> therefore, has no cause for
By the Gourt. — Judgment affirmed on both appeals.