Minert v. Emerick

| Wis. | Jul 1, 1858

By the Goiurt,

Cole J.

We have not been able to discover any error in the decree which was entered in the circuit court in this cause. The bill was filed to enforce the specific performance of a contract in writing, which is certain and fair in all its parts, and is for an adequate consideration, and can be performed by the parties. It was objected on the argument by the counsel for the appellant that it would be inequitable and hard to enforce the performance of the contract, because the assignors of the complainant did not strictly perform the same on their own part, by paying the purchase money when it became due, the first day of May, 1855 ; thus subjecting the appellant to great loss in selling off his stock and making arrangements to remove at that time into Iowa or Minnesota; and which arrangement he was unable to carry out in consequence of the contract not being fulfilled. Whatever force there might otherwise be in this view of the case, under the circumstances, we do not think the appellant is in a situation to strongly insist upon the objection. When he was asked in May, by Peter Emerick, to give up the notes and cancel the contracts, he refused to do so. And some months after, he gave notice through the mail to Groodlander and Welty, that the contracts were annulled and cancelled, he sued and collected the money due on the notes signed by Emericks, which were given for a part of the consideration money for the land sold. If Minert really intended to abandon the contract, he was bound in good faith to say so distinctly and unqualifiedly to the Emericks, and not attempt to collect of them five hundred dollars,' that portion of the consideration money for which they became security to pay, and also try to keep the lands. These acts are entirely inconsistent with the supposition that he intended to insist upon a punctilious performance of the contract, and Lad abandoned it on account ot the default of Goodlander and Welty in paying the purchase money when it fell due. Under such circumstances we sec nothing unconscientious in enforcing the performance of this contract. If the contract is to be enforced, the principles upon which the account between the parties is to be stated, appear to be correct. A point was made by the counsel for the appellant that the written assignments of the contracts were permitted to be read in evidence without any explanation of an alleged alteration in the dates of those assignments; the circuit court holding that it devolved upon the defendant to show by testimony that such alterations were wrong or made so as to invalidate the assignments; and which said ruling as is contended was erroneous. In order that this court might more fully appreciate the force of this objection, it was intimated that the original assignments would be produced for our inspection; but they have not been. However, we do not see how the question, as to whether there had been an alteration of the dates of the assignments, could have been very material under the pleadings of this case. It is to be observed that the action was not one between the assignors '|ajd the assignee, where it might be most important for the pii'ty claiming under the assignment to relieve the instrument from all suspicion resting upon it, and show that if had not been altered without the consent of the assignors after execution. The bill set out the assignments in full, which bear date April 30th, 1855; but it afterwards charges that the contracts were not really assigned at that time, but were assigned some months thereafter, and dated as of the preceding April, for reasons disclosed in the bill. The evidence is clear and satisfactory that the contracts were assigned some time in October or November, 1855, and that all the rights and interest of Goodlander and Welty under those contracts had, for a valuable consideration, been transferred to, and become vested in, the complainant before the bill was filed. Upon this point there does not appear to be room for doubt, unless we discredit entirely the testimony of Goodlander and Welty, which we see no reason for doing.

It would therefore appear that the right of the complainant to maintain the action, was complete before the suit was commenced. Suits in which bills have been filed for a specific performance of contracts for the sale and conveyance of real estate, have come so frequently before this court, and been so fully considered, that it is deemed unnecessary to go into any examination of the principles upon which they are sustained. We see no new question presented in the present case, and we therefore think the foregoing observations are sufficient to dispose of all matters material for our consideration.

The decree of the circuit court is affirmed with costs.