Northwesthern National Bank v. Ramsey

96 Wis. 544 | Wis. | 1897

NewMAN, J.

No doubt, the defendants, as between themselves and Cloyd, had the right to require all payments made on their notes to be applied upon the contract of the Land & River Improvement Company, in reduction of the unpaid purchase money of the lots, and, on complete payment, to require a proper conveyance. Final payment could not be enforced against them until Cloyd should have been prepared and ready to deliver a proper conveyance. Nor could the defendants require a conveyance until they had paid, or were ready to pay, the full purchase money. Kennedy, by expi’ess agreement, stood in Cloyd’s place. There is no dispute that he agreed to carry out Cloyd’s undertaking in regard to the application of moneys paid by the defendants on their notes. It was in dispute whether the plaintiff took the notes under a similar agreement, or with notice of the defendants’ equities, in that regard. Both land contracts were transferred to the plaintiff along with the notes. Each note contained these ■words and figures: “ Yalue received, lots 1 and 2, block 217, Ninth division, West Superior.” The contracts covered the same lots. If not notice itself, these facts furnish some evidence of notice. It would, at least, suggest to ordinary minds the inference that the notes were related to the payments stipulated in the contracts. At the time when the first notes became due, and before their payment, the defendants raised the question, and refused to pay unless the plaintiff should promise to apply the money paid to the payment of the purchase price of the lots, as Cloyd had promised to do. The plaintiff, with such evidence of the defendants’ rights in the premises in its possession, agreed to do just what ClojM had agreed to do, to have the money applied on the contract of the Land & River Improvement Company. It voluntarily put itself in Cloyd’s place as regards the application of these moneys. This may be viewed in either of two ways,— either as a compromise, or as an admission. If the right to have the moneys so applied was really in doubt and in dispute between them, then it was a compromise. If it was not in dispute, it was clear admission of the right, and strong evidence of previous notice of it. That the plaintiff did make such promise, and obtained part of the amount of the notes on the faith of it, is established by the verdict. So, it may fairly be deemed that the defendants have the right, as against the plaintiff, to have both the money which they have paid, and which they shall pay, upon the notes, applied upon the land contract of Cloyd with the Land & River Improvement Company.

This, in effect, puts the plaintiff in the place in which Cloyd stood before his transfer to Kennedy. It has the same rights, and is subject to the same obligations. Cloyd could not have recovered this final payment of-purchase money on the defendants’ contract -with him, unless nor until he was prepared and offering to perform- on his part by delivering a proper conveyance of the lots. The obligation of the parties to such contracts is reciprocal. The vendor cannot recover the final balance of purchase money until he has tendered or is ready to make proper conveyance. The vendee cannot require a conveyance until he has tendered and is offering to make payment of the full purchase money. If either party require it, the final payment and-the delivery of the conveyance must be concurrent acts. Pomeroy, Cont. (2d ed.), § 361, and cases cited in notes.

It was not controverted on the trial that the defendants had offered to pay to the plaintiff the full amount unpaid and due upon the Cloyd contract, on condition that it would procure and deliver to them a proper conveyance of the lots, and that it had refused and disavowed all obligation to do so, or to apply the payments to that purpose. This is one of the facts which are determined in the action, although not found by the verdict; for the trial, although in form by a jury, was really by the court. The only issues in the case arose on the equitable defense. There were no legal issues to be tried. The verdict was advisory merely. There should have been the usual finding by the court. The trial court evidently treated the special verdict as its finding, and based its judgment on it. A special verdict is insufficient to support a judgment, unless it finds all the facts which are essential to a recovery in favor of the prevailing party. The same rule is applicable to findings. Bates v. Wilbur, 10 Wis. 415. This verdict, treated as a finding, fails to find in the plaintiff’s favor this essential fact of a tender or readiness to perform on its part. On the contrary, an uncontroverted fact is established, and is to be treated as part of the finding* (Murphey v. Weil, 89 Wis. 146), that the plaintiff has disavowed its obligation to perform. So the finding not only fails to establish the plaintiff’s- right to recover, but establishes affirmatively that it has no right to recover.

By the Court.— The judgment of the superior court of Douglas county is reversed, and the cause is remanded with direction to render judgment for the defendants.