83 Wis. 233 | Wis. | 1892
This case comes here to be decided on the pleadings, findings of fact, and conclusions of law alone, there being no exceptions in the record. Geisinger v. Beyl, 71 Wis. 358. The findings of fact will be considered a verity on this appeal. Hallam v. Stiles, 61 Wis. 270. The findings of fact are substantially as follows:
“ $700.00. Deceived of W. C. Sherwood the sum of seven hundred dollars, being earnest money and partial payment for the purchase of the following described property, situated in the county of Douglas, state of Wisconsin: The northeast quarter of the southwest quarter of section 14, township 48, range 13, containing 40 acres, for the full price of $300 per acre, to be paid, viz., the sum of $3,300 in cash at this office when the deal is to be closed, within fifteen days after delivery of an abstract of the title to said property at said office, showing good and perfect and clear title thereof of record, except as herein stated, and the balance to be paid, viz., subject to one half a mortgage of $8,000, due one and two years from October 18, 1890, in equal payments, and a second mortgage of $4,000, due in equal payments of one and two years, December 18, 1890. All deferred payments to bear interest at eight per cent., to be secured by mortgages on said property. All accrued interest on any incumbrance now on said property shall be deducted from the cash payments. Warranty deed to be given vesting perfect title in said Sherwood, assigns, or order. If the title shall prove defective, and said purchaser shall refuse to accept the same, the said sum of $700 earnest money shall be returned at once to said Sherwood or assigns. If the title shall be perfect, and said deed shall be tendered to said Sherwood or assigns as above, and said Shervjood or assigns shall fail to com ply with the above terms, then the said sum of $700 earnest money shall be forfeited as the consideration of this contract, and this deal shall be off.”
The plaintiff handed this contract, together with his bank
The action is to recover the $700 as money had and received, and the court rendered judgment in favor of the plaintiff for the same.
This case is so obviously in favor of the plaintiff, on the mere statement of the facts, that the learned counsel of the respondent has not deemed it necessary to cite any authorities of law; and so it seems to be, on the plainest principles of reason and justice, that the plaintiff had the right to repudiate everything the defendant did subsequent to the verbal contract. He did not carry out that contract in
The authorities cited by the learned counsel of the appellant are foreign to such a case. Jesup v. City Bank, 14 Wis. 331, is to the effect that when an agent, unauthorized to do so, alters the bond and mortgage after they are issued, it does not invalidate them as they were before they were so altered. In Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 455, the unauthorized alteration by an agent was not material. There cannot be found an authority that would require the plaintiff to accept such an altered contract. The defendant, in his answer, admits the making of the verbal contract without such qualifying words in the number of acres sold. The learned counsel of the appellant says in his brief: “It is clear that Crosby [the agent] had authority to deliver the check to Merritt [the defendant], and complete the contract.” There is nothing clearer than that he had no such right in violation of the verbal contract. He was to deliver the check only on the signing of the written contract as drawn by the plaintiff.
The plaintiff has at least three meritorious grounds for repudiating the contract as carried out by the defendant: (1) Because of the material alteration of the written con
By the Court.— The judgment of the circuit court is affirmed.