71 Wis. 159 | Wis. | 1888
The learned judge, in the twenty-second finding, states it as his opinion that if the question of contract or no contract is to be determined by the evidence of what was done and said at the time the deed was executed and when the contract was in fact made, the preponderance of the evidence confirms the agreement as claimed by the plaintiff. Upon this question there does not seem any reasonable doubt. The plaintiff and her son, an intelligent young man, testify very clearly to the agreement as set up in the plaintiff’s complaint, and their evidence is confirmed by the evidence of the brother-in-law of the defendant, Mr. Hardy. In opposition to this evidence there is nothing except the general denials of the defendant, and his contention that he had no conversation with the plaintiff, at the time of the purchase, as to the price he was to pay or as to any other matter relating to the sale; but that the transaction was in fact between him and the plaintiff’s husband. And when they had "concluded the trade she signed the deed presented by her husband, and then asked him, “Now, Frank, what are you going to do with that land?” and that Mr. Lamar replied, “Why he is going to make money out of it if he can; we have sold it;” and to that remark of the husband she made no reply. If defendant’s version of what took place be the true one, it certainly shows a great want of interest on the part of Mrs. Lamar in a business in which she would naturally have the greatest interest.
The learned circuit judge was, as he says, influenced in arriving at the conclusion be did from the fact that certain
Upon this state of the evidence it is very doubtful whether the letters were competent evidence against the plaintiff, had they been objected to by her, and, having been given in evidence without objection, they should have no influence in determining the question at issue when it cleaidy appears that she neither authorized the correspondence nor was aware of its nature. The evidence in this case to bind the plaintiff by the acts and correspondence of her husband is no stronger, if as strong as in the case of Hadfield v. Skelton, 69 Wis. 460, where it was held that the wife ivas not bound by the acts of the husband done in her behalf but without her knowledge.
But if this court had the right to consider this correspondence between the husband of the plaintiff and the defendant for the purpose of determining the question as to what the contract of sale was, we do not think they should destroy the case as made by the evidence as to what took place at the day the trade was actually consummated. The facts are that at the time of the sale plaintiff was one of the tenants in common of the land in question, with
These two letters seemed to have closed the correspondence. Lamar had made a final offer at $4,000,— not a standing offer,— and requested a speedy answer. The answer came and the proposition was declined when the defendant wrote the letter of November 10, 1879, declining the offer to purchase at $4,000. Admitting that Lamar had authority from his wife to make the offer, the offer was no longer binding on her, and had it been accepted after the receipt of the letter of November 10th, it is clear the plaintiff would not have been compelled to convey for the $4,000.
It will be noticed that in this letter of the 10th of November the defendant suggests, at least, if he does not expressly request, that they should not put the lands in the hands of any one else for sale. He knew from the correspondence that Lamar had been making inquiries from other parties about the value of the land, and had reason to suppose that after he had refused the final offer they might seek a sale through some other person. So he says: “I can make a sale as good as anybody.” “If you do not choose to sell for the figures named I shall try and get all I can for you.” Three days after this letter was written, the defendant makes a contract with a responsible party for the absolute conveyance of five sevenths of the land at the rate of $60,000 for the whole interest, and receives $5,000 down in part payment of the five sevenths; $20,009 to be paid in five days after abstract of title to said premises, written down to date, showing said title to be satisfactory in the defendant for five sevenths of said land. This abstract of title was to be furnished within twenty days after the date of contract, and on payment of the $20,009 a warranty deed was to be executed for the five sevenths,
The foregoing facts are- stated, not for the purpose of showing that the defendant had assumed a fiduciary relation to the plaintiff in regard to this land, so that in equity he would be held liable to account to her for the money received by him on the contract of sale of her one-sixth interest to Cotting, but for the purpose of showing that when this sale to Cotting was made, and when the plaintiff sold her interest to the defendant, the negotiation for sale
The learned judge says there is no question of fraud in the case, as the action is brought upon an alleged express contract. This is true, and we determine to reverse the decision of the learned judge on the ground that the evidence establishes such express contract. We have, however, very grave doubts, upon all the facts of the case, whether the relation of the defendant to the plaintiff, and his conduct in procuring her conveyance for this land, would not have been set aside by a court of equity upon proper pleading, if he had in fact procured from her a deed of such land for the consideration of $4,000; or, if the plaintiff did not wish to avoid the sale, would have held the defendant to account to her for the entire consideration received by him on such sale for her interest. See Laidlaw v. Organ, 2 Wheat. 178, 195; Bench v. Sheldon, 14 Barb. 66, 74; Turner v. Harvey, Jac. 178. These cases illustrate the strict rule applied by courts to cases of this character.
The evidence shows that in order to complete the sale for-the $60,000 the defendant was compelled to pay his sister, Mrs. Hardy, the sum of $10,500 for her share. This sum, deducted from the $60,000, would leave $49,500 as the amount he received for the other five sixths. One fifth of this amount would be what the plaintiff would be entitled to recover for her interest, viz., $9,900. Of this she has
By the Gourt. — ■ The judgment of the circuit court is reversed, and the cause remitted to that court to take such ■further proceedings as may be necessary to ascertain the amount due the plaintiff according to this opinion, and to enter judgment therefor as directed therein.