Laney v. Ricardo

169 Wis. 267 | Wis. | 1919

Vinje, J.

The defendants contend (a) that the negotiations did not ripen into a contract; (b) that no note or memorandum signed by their agent was ever made to satisfy the statute of frauds; (c) that plaintiff, owing to his relations to Cann, is in no position to claim any be'nefit under a contract with the defendants; and (d) error in assessing damages.

The trial court made sixty-four so-called findings of fact covering forty-four printed pages. The first fifty-five findings are mere recitals of evidence, and most of the balance except finding 58, finding that a contract was made, and finding 63, covering plaintiff’s damages, are a mixture of recitals of evidence, arguments, and conclusions. Only two issues arose, namely: first, did the parties make a contract, and, if so, what were its terms; and second, if a contract was made what were plaintiff’s damages. The breach was admitted. '

This court has so frequently reminded trial judges that findings of fact should not be a recital of the evidence in the case, or a history of the litigation, but should cover only the ultimate issues raised by the evidence, that further adver-tence thereto seems superfluous. But the present case is so flagrant a violation of the rule that we cannot forbear to again admonish trial judges against like or similar infractions thereof.

The substance of all the correspondence between Laney and Pemberton and Cann and Pemberton up to the latter’s refusal to sign the written option, which was first presented to him by the bank either January 15th or 16th, is,set out in the statement of facts. From such correspondence and the testimony in the case three things clearly affirmatively appear: first, plaintiff was to pay $100 for an option for ninety days; second, he was to pay Ricardo $1,500 for his equity if he exercised his option within that time; and third, it was contemplated by plaintiff and Cann that a written option was to be signed by Pemberton. It also negatively appears that there was no thought on the part of Pemberton that he should “warrant that he has a good right and authority for this option,” which clause was contained in the draft sent and which he refused to sign partly for that reason.

It is a familiar principle in the law of contracts that the minds of the parties thereto must meet upon the essential contents of the contract. Here they never so met. Pem-berton never agreed to sell for $1,500 less the $100 paid for the option. His offer was to sell for $1,500 plus the $100 paid for the option. This offer plaintiff never accepted. And while the parties stipulated, upon the trial that Pember-ton had authority to give the option, he did not offer to warrant that he had authority, and from the evidence it appears he was unwilling to give such warranty. The fact that he wrote Arnold under date of January 9th that he had bonded the property for three months does not show an assent to the option sent him, for that was not seen by him till January 16th or 17th. At the time he made that statement he no doubt relied upon the truth of Cann’s telegram of January 5th that he had accepted $100 as option money on terms stated. Pemberton had a right to assume that the written option to be sent would embody the essential terms of the offer made, and not make counter terms as it did. That plaintiff and Cann understood that Pemberton alone had the right to give an option appears in all the correspondence and is made clear by the wire of January 5th where it stated option is forwarded for signature.

The trial court also inferentially finds that Pemberton, by not making specific and prompt objections to the option sent, ratified it. This view is untenable, because he distinctly told the bank he could not sign or use the form of option sent when it was first presented to him. The bank was plaintiff’s agent and it was its duty to inform him of Pemberton’s refusal to sign.

Nor is it strange that Pemberton should have written Arnold on the 18th day of January, a day or two after the option was first presented to him, that “apparently the deal with Mr. Cann is going through,” for he then no doubt thought that plaintiff would consent to eliminate the objectionable features of the option and make it correspond to the offer made. So, also, his expression in his letter to Laney that he was getting the option “altered a little bit” and would have it sent off today, January 20th, does not show a ratification of the option sent. On the contrary it shows disapproval or he would not have altered it a little bit. He must have deemed the alterations of some importance or he would not have made them, but would have signed the option as sent. This letter was written the day after plaintiff informed Pemberton of the record of a deed by Arnold. From there on everything was held in abeyance awaiting an explanation. Owing to the distance the parties lived apart and the difficulty Pemberton encountered in getting definite information, it is not strange that almost another month should elapse before hp told plaintiff definitely that the deal was off.

Counsel for defendants call attention to a number of matters in which the written option differed from Pemberton’s offer in addition to the amount of the purchase price and Pemberton’s warrant of power, but we prefer to base our decision upon the fact alone that Pemberton was under no obligation to accept $100 less for the equity in the property than he offered it for, and that the counter proposition to pay only $1,400 for such equity was never accepted or ratified by him. It follows that the trial court erred in finding that a valid contract for the sale of the property had been entered into by the parties either expressly or by ratification. The result reached upon this point renders it needless to discuss defendants’ other assignments of error.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for defendants dismissing the action upon the merits.