136 Wis. 270 | Wis. | 1908
Tbe following opinion was filed June 17, 1908:
Counsel for appellant concede that the issue raised by tbe answer, that tbe contract of January 8, 1900, was executed conditionally, is settled by tbe special verdict in view of tbe conflicting testimony. We have, then, as a starting point, an absolute contract binding upon both parties. It is urged, however, on behalf of appellant that tbis contract was abrogated by mutual consent of tbe parties. Abrogation, like a release or discharge, is new matter constituting a defense, and, if relied upon, must be specially pleaded. Sec. 2655, Stats. (1898) ; 18 Ency. PL & Pr. 89 Salchert v. Reinig, 135 Wis. 194, 115 N. W. 132. Tbe answer alleges that on January 16, 1900, the parties mutually agreed that tbe contract was abrogated and annulled. Tbe jury, in answer to tbe fifth question of tbe special verdict, found that the parties did not on January 16, 1900, mutually agree that the contract of January 8, 1900, should
This conclusion is re-enforced by the provisions of the order to reopen the case for the trial by the court of the questions relating to the title and value of the quitclaim-deed lands. It was therein stipulated that the findings of the jury should be taken by way of a special verdict as to all the issues except those mentioned. The form of the verdict was then under consideration, as appears from recitals to the order. It was not challenged either as to the form or the sufficiency of the questions to be submitted, and it is clear that counsel then understood that it covered all the contro
Counsel for appellant insist that the finding of the court that he breached the contract is contrary to the great preponderance of the testimony. This issue, so far as it is raised by the pleadings, is decided by the special verdict. The answer denies the execution of the contract by the defendant except conditionally, and avers that it was abrogated by mutual consent on January 16, 1900. Defendant testified that upon that day he offered to perform the contract on his part and that he then tendered the deeds therein called for to the plaintiff. The jury, by the answers to the third and fourth questions, negatives these statements of the defendant. There was no objection to the form of these questions and no request to submit a question embodying an offer of performance at a later date. In answer to the fourth question the jury found that the defendant did offer to the plaintiff the tax certificates and titles held by him, “but not properly executed.” Appellant’s counsel moved to strike out the words quoted as unsupported by the evidence. The court cannot
The complaint alleges that the plaintiff was and at all times had been ready and willing on his part to perform the contract. Counsel for appellant contend that this averment was put in issue by the general denial contained in the answer, and that the question has not been determined either by the special verdict or by the finding of the court. There was no request to submit this issue to the jury, but it was treated as settled by the testimony; and it would seem to be
“And the truth of all the allegations of the plaintiff’s complaint, other than those determined by said stipulation, said special verdict, and by the findings of the court hereinafter set out, having been established on the trial by the undisputed evidence,” etc.
There was no exception to this recital by the appellant Where the recitals of the judgment amount to findings of fact they have been held sufficient, although the practice is not approved. If the defendant desired a more particular finding on this issue he should have called the attention of the court thereto and should then have taken an exception to the refusal to find, or to the finding as made, if not satisfactory. Wrigglesworth v. Wrigglesworth, 45 Wis. 255. However, if this objection had been property and seasonably taken, we could not have reached a different conclusion from the evidence than that stated by the trial court. Mr. Maxon testified that he was ready to perform on February 23d, when the pretended tender of the deeds and certificates was made by the defendant. And the plaintiff in the letter already quoted advised the defendant he was and had been ready to perform on his part. These statements are not disputed, and the recital of the court was fully warranted by the testimony. It was held upon the former appeal that it was not necessary for the plaintiff to tender payment of the purchase price to enable him to maintain an action for a breach of this contract by the defendant. Maxon v. Gates, 112 Wis. 196, 88 N. W. 54.
Counsel for appellant contend that the trial court erred in treating the defendant’s ability to perform the contract on his part as one of the issues in the cause. Eeference is made to the complaint, in which it is stated that the defendant was able to perform, and it is claimed that there is noth
But we must bold that tbe questions raised on behalf of tbe appellant with reference to tbe proceedings upon tbe trial by tbe jury, by tbe consent order entered, are foreclosed by tbe special verdict and the order entered in connection therewith, reopening tbe case for tbe trial of tbe issues not embodied therein by tbe court. Tbis order was made upon tbe express condition that tbe findings of tbe jury then impan'eled should be taken by way of a special verdict as to all the issues in said cause other than the issues relating to the title and value of tbe quitclaim-deed lands, that tbe findings of tbe jury upon these last issues should be taken as advisory merely, and that when findings were made judgment should be entered as though all tbe issues bad been submitted to and determined by tbe jury. The special verdict, wbicb embraced tbe questions counsel then thought material for determination, found that the contract bad uot been executed con-
Counsel for the respective parties, by stipulation entered into December 8, 1906, agreed upon the validity or invalidity as to the titles of the lands which were to be quitclaimed by the defendant to the plaintiff under the.terms of the contract, except the tax deed marked “Exhibit Wl,” which was offered in evidence by the plaintiff and objected to by the defendant upon the ground that it was void upon its face. The trial court sustained the validity of this deed, and this ruling is assigned as error on behalf of the appellant. The tax deed recites:
and assignee of Ashland county,
“Whereas. James L. Gates, ^has deposited in the office of the county clerk of the county of Ashland, in the state of Wisconsin, seventy-five (75) certificates of the county treasurer of said county whereby it appears” that the lands described were for the nonpayment of taxes separately sold by the county treasurer of Ashland county “at public auction,
and J. h. Gates
at Ashland, in the county of Ashland,the nineteenth day of May, in the year of our Lord one thousand eight hundred and ninety-one, to the said Ashland county, for the sum of three hundred fifty-two dollars and sixty-four cents,” etc.
The remaining assignments of error relate to the measure ■of damages and present questions of serious difficulty in the application of legal principles to the circumstances of this case. The jury found the value of the 2,100 acres which were to be conveyed by warranty deed to be $4,000. There was a water power situated upon these lands and some indications of mineral, and the testimony was sufficient to sustain this finding. With respect to the 30,000 acres of land which were to be conveyed by quitclaim deeds, and the titles to all of which were doubtful, the jury found the value to be forty cents an acre, but made no deduction for the expense ■of clearing up these titles. There was no proof before the jury to show the condition of these titles, and this valuation covered the whole tract in its existing state of uncertainty. It was stipulated that the verdict as to these lands should be treated as advisory merely, and that the court should, upon proof to be submitted, determine the questions of title and value for the purpose of fixing definitely the amount of dam
The general rule for the measure of damages in an action brought by the vendee against the vendor for breach of such contract is the value of the land the defendant contracted to sell, estimated at the time the contract was broken, less what the plaintiff agreed to pay therefor. Muenchow v. Roberts, 11 Wis. 520, 46 N. W. 802.
“In estimating damages the court and jury are to look at the nature and terms of the undertaking or thing to be done; how it was expected and intended or proposed to enjoy that which the parties have bargained for, and how they were and would be benefited by performance or damnified by a breach of the particular engagement under the particular circumstances.” 8 Am. & Eng. Ency. of Law (2d ed.) 584.
“And so it is often said that, in an action for a breach of contract, the damages to be recovered are such as may reasonably be supposed to have been in the contemplation of both parties when they made it.” Brown v. C., M. & St. P. R. Co. 54 Wis. 342, 353, 11 N. W. 356, 360.
“The damages recoverable for breach of contract are such as may fairly and reasonably be considered the natural and proximate result thereof, and in the light of circumstances, special or otherwise, known to both parties at the time of making the contract, may reasonably be supposed to have been in contemplation by them as the probable result of such breach.” Gross v. Heckert, 120 Wis. 314, 321, 97 N. W. 952, 954.
“So it is held that prospective profits should not be allowed, without evidence to base .the same on sufficiently certain to remove the result from the realms of pure conjecture.” 120 Wis. 329, 97 N. W. 957.
The market value of land at any time is the price that would in all probability result from fair negotiation, where the seller is willing to sell and the buyer desires to buy.
Where the subject of sale is a staple commodity, the difference between the contract price and the market price at the time of the breach is readily ascertainable and generally furnishes a safe standard for the measure of damages. T. B. Scott L. Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 667, 65 E. W. 513. This rule is not altogether appropriate to the present situation, the more adequate criterion of damages here being compensation for the actual loss suffered under the principles above stated. The evidence of sales made at or about the time of the breach is admissible as bearing upon the actual value, when it appears that there has been no sudden change in conditions, and the proof in that regard offered on behalf of the respective parties has received such consideration as the circumstances seem to warrant.
The plaintiff here, therefore, is entitled to recover, as compensation for the defendant’s refusal to convey, the difference between the price agreed to be paid and the actual value of the lands on March 1, 1900, if sold in a body, subject to outstanding incumbrances, to one ready and willing to buy, such damages to be ascertained with reasonable certainty as the natural result of the breach and as within the probable contemplation of the parties at the time the contract was entered into. In the application of the law to- the evidence in this case, the court erred in adopting as a basis for compensation the value of the lands in small parcels, and in giving too great weight to the proof of sales made a
For a proper application of the rules of law, as above stated, for ascertaining the compensation to be awarded for the breach of this contract, in addition to the verdict already mentioned, the evidence may be considered with reference to the condition of the market in the spring of 1900 for the sale of land similarly circumstanced, in a body, the opinions of witnesses, based upon actual conditions, and the sales which were made at or about that time. These were known as “cut-over lands,” from which the pine and spruce had been removed, and which had been abandoned by the original owners and sold for the nonpayment of taxes. They were mainly situated remote from any railroad or settlement and were mostly without highways or schoolhouses. The hardwood, where there was any, was not readily salable by reason of the situation, and the lands possessed no immediate value for agricultural purposes, even where the soil was suitable.
It is apparent that the parties themselves considered the tax-title lands as of little value. During the negotiations for the purchase of these lands the plaintiff selected and purchased lands in the same vicinity of the defendant, on November 18, 1S99, 520 acres for $250, subject to outstanding tax certificates, which, when bought, made the total cost $1.43 per acre. About the same time the plaintiff purchased another tract of 1,000 acres, similarly situated, incumbered with tax certificates, for seven and one-half cents an acre, which, when the title was cleared up, cost $1.40 an acre. The defendant testified that in January, 1900, he sold 11,000 acres of cut-over lands in Price county, upon which the taxes were paid, for sixty-two and one-half cents an acre; that they were similar in character to the lands here in question, but more favorably located. This testimony was corroborated by the purchaser of the tract. Defendant testified to another sale of 10,000 acres in the same county, similarly circumstanced, at forty cents an acre; that he purchased 40,000 acres from the Weyerhauser estate in Sawyer county in 1900, with a clear title, for ninety cents an acre; that these lands were better than the Ashland county lands and were sold in 1901 for $1.50 an acre; that in September, 1899, he bought 82,000 acres of cut-over lands from Price county at twenty-five cents an acre; that in 1900 he purchased 100,000 acres of such lands from Chippewa county, of better quality and location, for fifty cents an acre; that he bought 50,000 acres of cut-over lands in Bayfield county, in January, 1900, for thirty cents an acre; that at about the same time he purchased 21,000 acres from Washburn county, with the taxes all paid, at ten cents an acre. Mr.
In connection with the expert testimony and the proof of ■actual sales, the evidence of the parties themselves must have great weight in determining the measure of damages which they .probably had in contemplation in case of a breach of this contract. Reference has been made to sales and purchases by the defendant in Ashland and neighboring counties in 1899 and 1900. On cross-examination the defendant stated that in his opinion the value of the tax-title lands on March 1, 1900, was $3,500, provided the purchaser was willing to put in more money to clear up the titles. Taking that as the net value and adding the amount of outstanding incumbrances, $10,899.11, the value of these lands upon this estimate is approximately $1.50 per acre. Reference has also been made to the testimony of the plaintiff of purchases made- by him in November, 1899, of two tracts of “cut-over lands,” similarly situated but in better condition, which cost him, when the titles were cleared up, on the average of about $1.42 an acre. In a letter written by the plaintiff to the defendant November 8, 1899, when negotiating for the purchase of the lands embraced in this contract, he gives his view of their value. He had then been furnished a list and had caused an examination to be made of the land situated in Ashland county, and had also sought to ascertain at what price that county would sell the tax titles and certificates which it held. He learned that the county “might be willing to sell its deeds and certificates for face.. This would make your lands cost me about, all they are worth.” He,then quotes from a letter received from a party
“I was at Ashland and thoroughly investigated the list of lands you gave me, and as yet am not satisfied to go into the deal, as I find that most of the lands have been cut over, and even the hardwood and spruce taken therefrom. I went ever to Morse and went out with a woodsman myself and looked over a part of the lands, and I must say that I do not think very much of them.”
The plaintiff adds:
“I recently purchased 1,000 acres of original title, which is in far better condition than yours, for seven and one-half cents an acre. Out of the list of lands which you gave me not over 10,000 to 12,000 acres can he cleared up, as the statute of limitations has run on adverse tax titles as against you and your company, and the cream of your land is gone. In some instances you have quitclaimed, and in other instances the timber is taken off. I can see no money in it for me, unless I can get what title you and your companies have at a very nominal sum.”
He then offered $2,000 for what title the defendant and his companies had in the lands, the tax certificates to he turned over with the quitclaim deeds. The better land which plaintiff had bought for seven and one-half cents an acre, cost him, when the title was cleared up, $1.40 per acre, and it is apparent that he did not consider the land which he was proposing to buy of the defendant was of any greater value.
This view of the plaintiff’s estimate of the quitclaim-deed lands at the time the contract was entered into is reinforced by his testimony as to the value of the 2,100 acres which were to he conveyed by warranty deed. He estimated the value of these lands on February 23, 1900, exclusive of the water power, at $3 per acre, and the value of the water power at $10,000. It is apparent, therefore, that he did not consider the tax-title lands of great value at the time the
The court also found that the plaintiff was entitled to-a credit in the sum of $116 for tax certificates held by the defendant and which were to be transferred to the former by the latter under the terms of this contract. The court further found that the titles of the defendant and his companies to the quitclaim-deed lands, by reason of their being tax titles, were worth fifteen cents an acre less than the value as fixed in the findings, and made the proper deduction therefor. This finding was excepted to by the defendant and is assigned as error on this appeal. A tax deed fair upon its face is, under our statute, a marketable title, and after the three-year statute of limitations has run in its favor there is no reason to question its validity. Gates v. Parmly, 93 Wis. 294, 312, 66 N. W. 253, 67 N. W. 739. Nevertheless, it is a matter of common knowledge that a tax title is not as acceptable to the ordinary purchaser as an original title, and consequently it was proper for the court, in determining the amount of plaintiff’s damages, to consider the diminution of the value of the lands on that account. Without undertaking to establish any fixed rule or to prescribe any particular standard, we have concluded, in view of the approval of these titles by the attorneys of the respective parties, after thorough examination, with the exception already referred
Verdict as to value of warranty-deed lands. $4,000 00
Net value of tax-title lands after deduction. 4,135 4G
Tax certificates field fiy defendant and to fie assigned.... 116 60
Total . $8,252 06
Less purchase price. 3,000 00
Amount of plaintiff’s recovery.■. $5,252 06
As so modified, the judgment stands as entered July 11, 1907, as follows: Damages, $5,252.06; interest from April 2, 1900, to July 11, 1907, $2,292.53; costs as taxed, $631.76— total, $8,176.35.
By the Court.- — -Judgment modified, and affirmed as modified ; respondent to pay the costs on this appeal.
On September 29, 1908, a motion by appellant for a rehearing was denied and a motioii by respondent for a rehearing was dismissed.