Inglis v. Fohey
136 Wis. 28
Wis.
1908
Check Treatment
WiNsnow, C. J.

Hie defendants’ contentions are, in substance, that the agreement between Fohey and the plaintiff, made on April 28,11906, is so indefinite, uncertain, and vague that it is not enforceable as a land contract, and that the evidence admitted by the court, showing the circumstances under which it was made and the subsequent acts of the parties construing its terms by their acts, was not admissible. The written contract is certainly indefinite in several particulars, especially in respect to the description of the real estate intended to be covered by it. If the court had no further information than that given by the writing on its-face, it seems probable that it would be impossible of enforcement because of its indefinite terms. But where parties have attempted to reduce an agreement to writing, and such writing is in some respects indefinite or ambiguous, the contract does not necessarily fail, nor will a party suing upon it *33be denied relief. If, bj .aid of evidence showing tbe situation and surroundings of tbe parties at tbe time, and tbeir subsequent acts, if any, construing tbe terms of tbe writing, tbe court can with reasonable certainty determine tbe meaning intended by tbe parties, tbe court will not allow tbe contract to fall, but will construe it in the light of such evidence and enforce its terms as so construed, if there be no other fatal objections to it. This principle is so well established that discussion of it, or citation of authorities in its support, seems hardly necessary, but reference is made to Excelsior W. Co. v. Messinger, 116 Wis. 549, 93 N. W. 459 (where tbe authorities on this general subject are collated), and to tbe case of Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176. Tbe court rightly received such evidence in tbe present case, and there can be no doubt that tbe court arrived at a correct conclusion as to the proper construction of tbe contract.

The fact that tbe time of performance was not fixed does not prevent specific performance. Tbe legal implication is that performance is to take place within a reasonable time. Williamson v. Neeves, 94 Wis. 656, 69 N. W. 806. If there was any defect in tbe tender or demand for a deed, that fact was immaterial, because tbe defendant utterly repudiated tbe contract. Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887. The defendant Bosa bad no inchoate dower right, because her husband bad no title, legal or equitable, at tbe time be made tbe contract with tbe plaintiff, but only a mere contract right to purchase; hence when be afterwards received bis title it came to him subject to tbe plaintiff’s right to demand a deed of that part which is in controversy. As to this part, therefore, the plaintiff’s right is prior and superior to any right of dower. .

It is objected that tbe court only required the plaintiff to pay $4,200 into court when the contract fixes the sum to be paid at $4,225. It appears, however, that plaintiff paid Eohey $25 at the time of the contract. True, this was to be *34returned when a contract for tlie property was entered into with, the trust company. This condition, however, was plainly in view of the then existing contemplation of the parties that a contract was to he made with the trust company by which each party was to receive title to his share direct from the former owner. As this contract was never made and cannot now be made, the condition for return has ceased to exist, and the judgment must necessarily be construed as determining that the defendant has a right to and should retain the sum.

The temporary injunctional order restraining the defendant from interfering with plaintiff’s possession was very plainly a proper order. It simply preserved the status quo pending the litigation. By a subsequent order the plaintiff was required to pay a monthly rental into court to abide the event of the action, and thus the rights of all parties were protected.

By the Court. — Judgment affirmed.