Sixta v. Ontonagon Valley Land Co.

148 Wis. 186 | Wis. | 1912

Kerwin, J.

Under tbe contract which is tbe basis of' plaintiffs’ cause of action tbe plaintiffs bad tbe exclusive right of sale of tbe lands of defendant until January 1, 1911, and. were to receive $1.50 per acre commission, subject to defendant’s right to sell all or any part of the land at not less than $10 per acre, and plaintiffs were to receive no commission on land sold by defendant. Plaintiffs were further given the right, at any time prior to January 1, 1911, to purchase all the lands in question which should remain unsold at the time of exercising their option, at the uniform price of $6 per acre; and it was agreed by the terms of the contract that all money received by defendant, as well as the face value of all securities received by it upon sales theretofore made by plaintiffs, after deducting $6 per acre, should be credited to plaintiffs, to apply upon the purchase price of the lands which plaintiffs should elect to purchase. The defendant also agreed to credit plaintiffs, if they should elect to purchase, with all sums over and above $6 per acre received by defendant on sales made by it. All expenses in connection with sale and marketing of the land were by the contract to be borne by plaintiffs. The plaintiffs duly performed on their part up to and after May 23, 1910, and sold 1,380 acres, advertised the lands for sale and solicited persons to buy, and were prepared to carry out all the provisions of the agreement within the time and in the manner specified, and intended to purchase all the land specified in paragraph 6 of the agreement. The defendant violated the contract on May 23, 1910, by a sale of all lands not theretofore sold by plaintiffs for less than $10 per acre, and disabled itself from performing its agreement with plaintiffs and so informed plaintiffs, and refused to further deal with plaintiffs under the agreement, and made it impossible for plaintiffs to carry out the agreement on their part, although plaintiffs were able, ready, and willing so to do. It is alleged that plaintiffs sustained $100,000 damages.

The foregoing facts are admitted by the demurrer and constitute a good cause of action against the defendant. Just what damages may be recovered need not be considered and cannot well be until the evidence is in. It is sufficient that the complaint states a cause of action for the recovery of some damages.

The main contention of respondent is that the writing sets out a selling agency and an option to purchase, and that the option was not binding until accepted, and that it was revoked or withdrawn before accepted, hence plaintiffs never acquired any rights under it. The so-called option feature of the contract cannot be separated from the commission part. Each is dependent upon the other: the covenants are mutual. The covenants of each party to the contract constitute a consideration for the covenants of the other party. The contract is an entirety. The promises are mutual and are a sufficient consideration between the parties to the contract. Hawes v. Woolcock, 26 Wis. 629. Moreover, the contract is under seal, which imports, presumptively at least, a sufficient consideration. Sec. 4195, Stats. (1898); Carey v. Dyer, 97 Wis. 554, 73 N. W. 29; Kuener v. Smith, 108 Wis. 549, 84 N. W. 850. The covenant that defendant should not sell for less than $10 per acre was for the benefit of plaintiffs, because they had an interest in all moneys received on sales above $6 per acre, in case they elected to purchase. Moreover, by the sale at less than $10 per acre the defendant violated the express terms of the contract and disabled plaintiffs from continuing to make sales upon commission. The plaintiffs had the right to purchase all unsold land at any time before January 1, 1911. The defendant could not sell for less than $10 per acre so as to cut off the plaintiffs’ right to purchase; and when it did sell for less, plaintiffs were entitled to the damages occasioned by the breach. But it is argued by respondent that plaintiffs did not exercise their option to purchase. We think the allegations of the complaint show an acceptance of the option in so far as plaintiffs were able to accept. It was not necessary for them to do a vain and useless thing. They allege in their complaint “That said plaintiffs had prepared and were prepared to carry out all of the provisions of said agreement within the time and in the manner therein specified, and were prepared and intended to purchase all of said lands as specified in paragraph 6 of said agreement,” and that they were prevented from so doing by defendant’s breach of the contract, which breach disabled defendant from performing on its part; that in the month of July, 1910, defendant informed plaintiffs that it had disabled itself from performing its part of the agreement and refused to further deal with plaintiffs under the agreement, and thereby made it impossible for plaintiffs to carry out the agreement on their part, although they were able, ready, and willing so to do. These allegations admitted by demurrer were sufficient to show acceptance on the part of plaintiffs and offer to perform, in face of the fact that the defendant refused to further deal with plaintiffs under the agreement.

Counsel for appellants relies upon implied terms which he argues necessarily flow from the writing though not expressed. We do not find it necessary to pass upon such contention, since we are satisfied that by the express terms of the contract, together with the allegations of the complaint, a good ■cause of action is pleaded.

By the Court. — The order appealed from is reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings according to law.