Hopfensperger v. Bruehl

174 Wis. 426 | Wis. | 1921

Siebecker, C. J.

The action was brought to replevy personal property from defendants which the plaintiff claims he purchased from the defendant Mayer under a written contract between himself and Mayer and his wife on April 19, 1919, whereby the Mayers sold to plaintiff their farm and the personal property specifically described in the contract. When the action was called for trial the parties agreed that the issues raised by the pleadings included the issue for specific performance of the contract, and a trial was had before the court for determination of such equitable issue. Upon ¿he evidence adduced the court made findings of fact as stated above. It is well established, as the court found, that the plaintiff and defendants, neighbors, met on the following 22d day of April, after the written, contract had been signed, to further consider matters pertaining to the transaction, and that it was then mutually understood and agreed that the Mayers should have the right to occupy the house on the premises until the following September-, keep the chickens, have the right to firewood and the use of a garden patch and a daily allowance of milk; that plaintiff should pay five per cent, interest on the unpaid purchase money from May 20th until the time of payment, and that the note and mortgage for part of the purchase money should be due in five years. Under the agreements so made in writing and by parol the plaintiff was given the possession of the farm on April 28th and of all the personal property so purchased by him. Thereafter the plaintiff cultivated the farm and had charge of this personal property without interference by the defendants until the 12th day of May following, when the defendants Ernst Mayer and wife undertook to repudiate the contract of sale of the farm and personal property by the attempted trespass found by the court and the removal of some of the personal property from the premises, which obstruction continued up to the time this action was commenced. It is clear that the* parties intended to consummate a purchase and sale of the farm and personal property in question and that the written contract embraced all of the agreements respecting the same, except that the time for payment of the unpaid purchase money and the interest it should bear were not inserted. It is contended by appellants that parol evidence of the agreements respecting time of payment and interest cannot be considered because under the provisions of sec. 2302, Stats., they must be in writing. It is manifest that the agreements of the partie^ made on April 22d do not contradict or vary ■ the agreements of the writing made April 18th. They add definite terms to those contained in the writing on the same subject, and make additional arrangements respecting the occupancy of the house, retaining chickens, using firewood and garden patch and the furnishing of milk. The situation on April 22d was that there was a written contract between the parties for the sale of the farm and the specified personal property, containing all the essential terms required in law except that the time of payment of the consideration and the interest thereon .were not specifically embodied, which were, however, definitely agreed upon orally thereafter as a part of the transaction. It is plain that the writing and parol agreement express the entire transaction and that they are in no way contradictory but that they are supplementary. Under the circumstances, the terms of the writing and parol arrangements constitute the contract of the parties upon which possession of the farm and personal property was delivered to plaintiff on the 28th day of April following. There is no legal objection that the contract is in part in parol, since the writing on its face indicates that it does not contain the entire transaction of the parties respecting the subject of the contract. Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103; Kipp v. Laun, 146 Wis. 591, 131 N. W. 418.

It must be borne in mind that the wife signed the written contract for the sale of the farm and acquiesced in the parol stipulations regarding the payment of interest and the term of the note and mortgages. Under these circumstances of the transactions it appears, as held by the trial court, that

“The defendant let the plaintiff into possession of the farm (all but the house) and of all the personal property. The plaintiff’s son boarded with Mayer, took care of the stock and worked on the farm, and the latter assisted him more or less. Everything appears to have been harmonious until about the 12th of May. Mayer, then, for reasons best known to himself, concluded to repudiate the contract, and placed every obstacle in the way of plaintiff’s enjoyment of the premises.”

Manifestly the plaintiff was in complete possession of all of the property he bought from Mayer in fulfilment of the contract of sale. The plaintiff’s possession of the property with defendants’ consent constituted such a substantial part performance of a valid contract for the sale of real and personal property that repudiation thereof by defendant Mayer would operate inequitably against the plaintiff and to his great damage. Under such circumstances specific performance of the contract of sale was properly awarded by the trial court under the provisions of sec. 2305, Stats. Booher v. Slathar, 167 Wis. 196, 167 N. W. 261, and cases there cited.

We discover no indefiniteness in the description of the personal property transferred by the terms of the written contract as supplemented by the parol agreements as above indicated. It is considered that the trial court properly awarded judgment for specific performance of the contract of the parties.

By the Court. — The judgment appealed from is affirmed.