137 Wis. 315 | Wis. | 1908
This action was brought upon the theory that in case the parties failed to agree the plaintiffs might pay $1,000 and be released from all obligations under the contract, except the payment to Otilia Petraschefski of $450, the $450 provided for Mrs. Langhoff having been paid by plaintiffs before the action was commenced. The contention of the parties involves the construction of the agreement set up in the statement of facts. The court found failure to agree, and also that prior to the commencement of the action and the tender of the $1,000 the plaintiffs at various times violated the obligations of the contract by failing to furnish nursing and care and otherwise. These findings, we think, are supported by the evidence. The question therefore arises whether the breach was a breach of a condition subsequent which entitles the defendants to rescind and re-enter for condition broken and thereby become repossessed of their former estate, under the rule of Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; Wanner v. Wanner, 115 Wis. 190, 91 N. W. 671; Krause v. Krause, 125 Wis. 337, 104 N. W. 76; Gall v.
It is further contended that it was error to find the value of the timber cut $200, the value of the house built by 'plaintiffs $1,150, and in requiring the defendants to pay plaintiffs only $950. It also appears from the evidence that the plaintiffs made valuable improvements in addition to building the house, principally by way of fences, for which no allowance was made. It also appears that, in order to determine the rights of all parties, Otilia Petraschefski, daughter of defendants, should have been made a party, since the contract provided that she be paid $450 upon arriving at the age of eighteen years. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440. It is quite clear that the plaintiffs should have been allowed more than $950. The clear preponderance of the evidence shows that the reasonable cost of the house was more than $1,150; but it would be difficult if not impossible, from the condition of the evidence, to arrive at the reasonable cost, and there is no evidence from which the cost of the fences could be determined. So, because of the condition of the record, this court cannot finally dispose of the case.
In order to do so, Otilia, daughter of defendants, must be made a party and permitted to defend, so that she may be bound by the judgment, and further testimony taken upon
By the Court. — The judgment of the court below is reversed, and the action remanded for further proceedings in accordance with this opinion.