Hege v. Thorsgaard

| Wis. | Dec 10, 1897

MARSHALL, J.

At the commencement of the trial there was an objection to any evidence .under the complaint, upon the ground that it fails to state facts sufficient to constitute a cause of action. The complaint is quite lengthy, but in substance, by proper allegations, it sets forth the making of a contract between defendant and plaintiffs, by which the former agreed to sell to the latter a particular eighty-acre tract of land for $>2,400 on the terms he purchased it of one Thorsen, and apply on the purchase money the amount he might receive for forty acres of land deeded to him by plaintiff Dorothea, after deducting from such proceeds certain indebtedness, then existing, of plaintiffs to defendant; that pursuant to such contract possession of the eighty-acre tract of land was delivered to plaintiffs by defendant, and that thereafter defendant sold the forty for $1,100 and refused to account therefor according to the agreement; and that without the knowledge of Dorothea, he made a lease of the eighty to Amund, and refused to make a land contract to her as agreed upon. Such allegations were sufficient to make a good cause of action in plaintiffs’ favor, for an accounting and for specific performance, so the demurrer was properly overruled.

At the close of plaintiffs’ evidence there was a motion for a nonsuit made and overruled. Error is assigned on that ruling and on the exceptions to the findings of fact because not sustained by the evidence. All of these rulings may be properly considered together. If, on the evidence, we cannot disturb such findings, we must hold the motion for a nonsuit to have been properly overruled, for such findings are sufficient to sustain the judgment appealed from. We are not prepared to approve the judgment in form, but wherein it departs in that regard from what would be strictly proper, in view of the facts found, defendant is in no way prejudiced j therefore such departure is not reversible error. The effect of the judgment is to wipe out the lease made to Amimd P. entirely, and to require the defendant, after applying the money received from the forty, in accordance with the findings, to make a land contract to the plaintiff Dorothea in accordance with the verbal contract as established bjr such findings. A careful consideration of the evidence leads to the conclusion that while it is not very clear and satisfactory, viewing it without the aids that a trial judge is always presumed to have to enable him to discover the truth, we are unable to say that any of the material findings are against the clear preponderance of the evidence. Therefore they must stand as verities in the case. There is considerable evidence in the record, which, if believed, sustains all of such material findings. On the subject of who was the contracting party with the defendant, plaintiff Dorothea, while using the pronoun “ we,” referring to herself and husband, at times, testified positively that the land contract was to be made to her, and there is no controversy but that the entire consideration that was paid consisted of the proceeds of her individual property. No doubt the latter circumstance wras quite persuasive with the trial court as to what the fact was, respecting whether the contract was with Dorothea P. or her husband. There was no serious controversy as to the esséntial terms of the contract upon which the defendant sold the land. The dispute was in respect to whether the agreement to sell ivas with Dorothea or her husband, and whether a land contract was to be given, or the lease with an option to purchase, which in effect was to accomplish all the purposes of a land contract, and as to whether defendant was entitled to deduct from the proceeds •of the forty acres of land any further sum than was allowed by the court. These disputed questions are all found in plaintiffs’ favor on' the evidence.

Defendant acknowledged that he had treated the forty as his own by giving a long lease, with an option to purchase, •and that in a pretended settlement with the plaintiff Amund he admitted that he was chargeable with $1,100 therefor. ■So, if the finding that defendant sold the land for $1,100 is not strictly accurate, defendant is not prejudiced thereby. His conduct with reference to the land was such as to warrant the court in holding him liable, the same as if an actual •sale of the land had been made. After having made a long lease of the forty without consent of plaintiff Dorothea, with an option to the lessee to purchase it, and claiming to be the owner thereof, and acknowledging liability therefor for the sum of $1,100, he cannot complain that the court charged him accordingly.

By the Court.— The judgment of the circuit courtis affirmed.