Schaap v. Wolf, 173 Wis. 351

Schaap v. Wolf

173 Wis. 351 | Wis. | 1921

Vinje, J.

The defendant W-olf conténds that since the oral agreement of April 2, 1917, relates to an interest in land — standing timber, — it is void under the statute of frauds. Sec. 2302, Stats. The defendant Lindozv makes the same defense, and further claims that since his grantor, Heise, was a bona fide purchaser for value and without notice of the oral extension of time for the removal of the timber, he took as good a title as Pleise had and is therefore not liable, citing 2 Tiffany, Real Prop. 1095; Simon v. Kaliske, 1 Sweeny (N. Y.) 304; and East v. Pugh, 71 Iowa, 162, 32 N. W. 309. If the first of these respective claims is sustained it disposes of the case in favor of the appellants and alleged errors in procedure need not be discussed.

That a contract for the sale of standing timber relates to an interest in land and comes within the statute of frauds is well settled in this state (Daniels v. Bailey, 43 Wis. 566; Seymour v. Cushway, 100 Wis. 580, 590, 76 N. W. 769, and cases cited; Huntington v. Burdeau, 149 Wis. 263, 268, 135 N. W. 845, and cases cited), and is not contested by plaintiff. But he contends that though the contract is within the statute of frauds the oral agreement of April 2d was but an extension of time of performance, and under the rule in Hirsch R. M. Co. v. Milwaukee & F. R. V. R. Co. 165 Wis. 220, 161 N. W. 741, the defendants are estopped from setting up the statute as a defense. In that case the oral agreement related solely to the time of performance, without in any other respect modifying the written contract of sale of *354goods. In the case at bar the written contract is modified by the oral agreement by striking out the clause therein stating, “If Mr. Wolf still owns the farm next winter Mr. Schaap may have the privilege of reproving the timber at that time.” It is conceded that Mr. Wolf did not own the farm next winter, but it is claimed that nevertheless plaintiff had a right to remove the timber. This can mean only one thing, namely, that the above quoted provision of the written contract was by the oral agreement eliminated and an absolute agreement made that, no matter who the owner was, plaintiff should have the right to remove the timber in the winter of 1917-1918. If this is not so, then the oral' agreement added nothing to the written contract, for under that he had a right to remove the timber the next winter if Wolf owned the farm — no additional agreement was necessary to give him that right. In other words, it is claimed that a contract within the statute of frauds can by an oral agreement be Validly changed as to a material condition therein. This is not the law. Hanson v. Gunderson, 95 Wis. 613, 70 N. W. 827; Saveland v. Western Wis. R. Co. 118 Wis. 267, 272, 95 N. W. 130, and cases cited. If that could be done it' would practically nullify the statute of frauds, for if you had any contract in writing you could make an entirely different one by parol, using the written one as a basis of the change. The result would be that oral contracts preceded by a written one would be valid though quite different therefrom, while wholly oral contracts would be void. To hold that an original party to a written contract is held estopped to insist upon the time of performance thereof when he himself has caused the delay, as in the Hirsch Case, above cited, affects no condition of the written contract except the time of performance. Here one of the parties sought to be estopped was not a party to the original contract, but we do not rest the decision upon that ground and express no opinion as to how that might affect the question of estoppel in a proper case. ■

*355It follows as a matter of course that if the oral agreement is not binding upon Wolf, who made it, it cannot be binding upon Lindozv even if he had notice ,of it. It will therefore not be necessary to pass upon the question of his taking good title through Heise, his grantor.

By the Court. — Judgment reversed as to appellants, and cause remanded with directions to dismiss the complaint as to them upon the merits.