Smith v. Merrill, 134 Wis. 227

Smith v. Merrill

134 Wis. 227 | Wis. | 1908

Sibbbokee, J.

The court refused specific performance of the contract for the sale of the land owned by the defendants upon the ground that Waterman was not authorized to enter into the contract he made with the plaintiff for the pinchase of the land. An examination of the evidence supports the court’s finding that Waterman was authorized by Mr. Merrill, one of the defendants, to make a cash sale of the premises at the price of $10 per acre, the purchaser to pay the taxes on the land for the year 1903. The agency of Waterman clearly authorized him to make a sale of the premises for cash at the prescribed price and the payment of the *233taxes, but did pot authorize bim to allow tbe purchaser to refuse to take the property at any time before final consummation of the sale by the delivery of the deed and the payment of the consideration. The contract of sale made by him is embodied in a writing in the form of a receipt and an agreement for the sale of the land to the plaintiff, and expressly provides:

“In case the abstract [of title] to said property should prove to be defective, . . . then this receipt to' be void, and money herein paid to be refunded; but in case the title should prove to be good, and said purchaser, or his assigns, should refuse to take the property, or should fail to make payment [as specified], then this receipt to be . . . entirely . . . void, and said money herein receipted for shall be forfeited to L. E. Waterman for consideration of this agreement.”

In the event of such a forfeiture the purchaser is to have no right to the property or the money so forfeited. It is also expressly stipulated that if the whole purchase price should be paid to Waterman within thirty-four .days after the date of the agreement, then Waterman was to deliver a deed of the land. This contract, set forth in the foregoing statement of facts, differs in form and phraseology from those usually employed in agreements for the sale of land. It contains no terms of present sale or transfer of the interest of the owners to the intended purchaser. In all its terms it speaks in terms of future execution of the bargain between the parties. Its context shows an intention of the parties that the purchaser should have the privilege of refusing the property within the thirty-four-day period fixed by them for the final consummation of the sale. The intent is manifest from the phraseology employed and the terms and tenor of the stipulations, and must be given effect as expressive of the intent of the parties.

Appellant contends that the context of this agreement is the same in legal effect as those construed in Willes v. Smith, *23477 Wis. 81, 45 N. W. 666; Shenners v. Pritchard, 104 Wis. 287, 80 N. W. 458; and also Foster v. Lowe, 131 Wis. 54, 110 N. W. 829. The contracts in those cases were construed as giving the vendees no right to refuse to take the premises if the vendors elected to enforce them. In the last two cases this right of the vendors to enforce the agreement upon their election was specifically stipulated, and this was held to imply -an understanding by the parties that the agreements were to remain binding obligations of the vendees at the option of the vendors. The agreement in the Wittes Gase in some of its features is not unlike the one before us, but it provided specifically that, upon default by the vendee to accept a good title within the time specified, the owner might declare the contract terminated. Under this stipulation it was resolved that the contract could only be terminated by the vendor, and the vendee was held to have agreed to an absolute purchase, from which there was no release except at the option of the vendor. As above stated, the agreement here clearly indicates that the vendor has no .option to declare the contract terminated, and the vendee, by forfeiting the payment he had made, reserves the privilege of refusing to accept the property within the time limited by the agreement. These stipulations distinguish this agreement from' the contracts in the cases above cited and such as constitute a sale of lands. The vendee having the right to refuse to purchase the land at the stipulated price within the time agreed upon makes this contract an optional agreement, and the vendee might refuse to take the property within the contract period. Waterman’s authority to sell the land at the stipulated price for cash did not cover such a contract as this, and his action in the matter was not within his agency to sell the land for the defendants. The facts and circumstances which establish his agency show that he was restricted to making an absolute sale, for cash, at a given price. These facts were also known to plaintiff’s agent, *235A. K. Smith, in making the purchase for plaintiff. There is no proof that the defendants have ratified the contract so made by Waterman. Upon these considerations it results that defendants are not bound by the agreement, and the court properly found that Waterman was not authorized to make the sale upon the terms and conditions of the contract.

By the Gowrt. — Judgment affirmed.