69 Wis. 317 | Wis. | 1887
The findings of fact seem to be well supported by the evidence. At the close of the testimony on the part of the defendants, the plaintiff attempted to show the condition of the livery stock when the defendants took possession, and'its condition at the time of the trial, but the court refused to allow him to do so, and error is assigned for such ruling. The proposed testimony, if admissible, should have been given as a part of the .plaintiff’s original case. Some such testimony was in fact given by the plaintiff before resting his case. To have allowed him to give in evidence the proposed testimony, would have been to allow the plaintiff to re-open his original case. This could not be done as a matter of strict legal right, after the defendants had rested. Trial courts, however, have a large discretion as to the order in which testimony should be admitted, especially in equity cases like this. Such exercise of discretion, in good faith, and in the absence'of any abuse of it, is not the subject of review. It follows that this appeal must be determined upon the facts as found.
Manifestly, the trial court was. right in holding that the two written instruments between the same parties, made at the same time, in pursuance of the same agreement, for the same common purpose, and in relation to the same subject-matter, must, upon well-settled principles, be construed together as constituting one paper in law. Winner v. Hoyt, 66 Wis. 234; Herbst v. Lowe, 65 Wis. 320.
The plaintiff is the father of the defendant Maggie. At the time of making the writings he lived alone in Green Bay, and she and her husband at Marinette. The plaintiff then had a livery-stable and certain other pieces of land in Green Bay, a part of which was subject to a mortgage of $4,500. He also had a livery stock, and was carrying on
It is very plain that such transfer, assignment, and conveyance, so made to. Maggie, were in consideration of the money so paid by her, and agreements to be performed by' her — including the implied agreement to provide and furnish the plaintiff during his natural life with good and comfortable home, food, and other necessaries. We say implied agreement, because it stands as an “express condition” in the deed. The payment of the $1,000 left the defendants substantially without means to perform the agreements on their part, except as they were enabled to do so from the livery business and the income of the property received from the plaintiff. The continuance during the life of the plaintiff of such business and income was the only security the defendants had against the forfeiture for condition broken, provided for in the deed. If they fail to pay the mortgage when due, they are liable to lose a part of the land by foreclosure. If they fail to perform the condition in the deed, they are liable to lose all the land by forfeiture. The condition will continue during the life of the plaintiff, unless sooner terminated by forfeiture. By implication the livery business was to be carried on by the defendants, at least until the mortgage should be paid up from gains arising therefrom, over and above all expenses. It was only after such payment of the mortgage that such net gains were to be divided equally between the plaintiff and Maggie. Whether there will ever be any such gains, time only will demonstrate. The right to such division of
But whether the agreement constitutes a partnership or not, it is manifest to us that the defendants, under the agreement, have the exclusive right to the sole control and management of the livery business, so long as there is no forfeiture, nor any substantial intervening equity. This action does not directly seek to enforce a forfeiture-by reason of any breach of condition named in the deed. Besides, it is well settled that equity will not entertain an action to declare a forfeiture for condition broken, Mills v. Evansville Seminary, 47 Wis. 354. In such case a technical bieach of contract affords no ground for equitable relief, because equity deals only with substantial rights, and only interferes when such rights are endangered. Here, according to the facts found, the defendants acted in good faith, and substantially performed their contract. This being so, the plaintiff, at most, was only entitled to an accounting, and that he got. To allow the plaintiff to go further, and in effect rescind the agreement, and thus force the defendants into a position where a forfeiture would be inevitable, would, as it seems to us, be inequitable, if not an abuse of the powers of the court.
By the Court — The judgment of the circuit court is affirmed.