| Wis. | Jun 15, 1874
The circuit court found as a fact, that, according to the terms of the contract as agreed upon between the parties, interest upon all sums unpaid, at the rate of ten per cent, from the date of the instrument, was to be paid annually. As we understand the evidence, there is really no conflict upon that point — the parties to the contract, as well as the witness Hopper, who drew it, substantially testifying that this was the agreement in regard to the payment of interest.
The court also found that it was a part of the agreement that the vendee might, if he chose so to do, terminate the contract at any time before the second installment became due, by forfeiting the sum already paid. An exception was taken to thi-s finding of fact on the part of the plaintiff, but, as the judgment was finally in his favor, he has taken no appeal. But still hi3 counsel insisted that it was competent for this court to review the exception on the appeal of the defendant, under sec. 16, ch. 264, Laws of 1860, as amended by sec. 2, ch. 36, Laws of 1872. This presents a question of some importance, viz: the construction of the law of 1872 ; but as it is not essential, in the view we have taken of this case, to decide it, we shall leave it for
The defendant claims that the understanding was, in case he chose not to pay or failed to pay the first installment specified, which became due April 1, 1871, that the contract was to be at an end, and that neither party should thereafter have any claim against the other under the agreement. Still he states in his answer that on the 27th day of June, 1870, he assigned his interest in the contract and in the land therein described to one Robert Roberts, who then took possession of the land, and has ever since been in the possession thereof. Now we fully agree with the circuit court in the view that, if the defendant had the right to throw up the contract, by this act of assignment he elected to abandon that right and to continue the contract in force. It surely would be unreasonable to assume that the parties intended that the vendee might rescind the contract when it was no longer in his power to rescind it, and when he was unable to restore the vendor to the position in which he stood before the contract was entered into. The defendant, having assigned the contract to Roberts, is of course unable to surrender and cancel it. Neither can he deprive his assignee of any rights which he has acquired by the assignment. He cannot even restore the possession of the property so as to bind Roberts. If he intended to avail himself of the condition, which he now claims the contract gave him, of avoiding or rescinding it, he should not have thus rendered it utterly impossible for him to restore the plaintiff to. the position in respect to the possession of the land and the contract in which he stood an-tecedently to or at the time the contract was executed. For to hold that it could have been the intention of the parties that the defendant should be released and discharged from its obligations without surrendering the agreement and restoring the
Roberts, the assignee of the contract, is not a party to the action. Of course, no judgment which may be given in the case will conclude his rights. Where he is, or what he claims under the contract, does not appear. There is testimony which tends to show that he is dead, or, if living, is out of the country and beyond the jurisdiction of the court. And, as remarked by counsel for the plaintiff, he or his heirs may appear any day and insist upon a performance of the contract. And this furnishes an additional reason for denying the defendant the right to insist upon the forfeiture of the contract, if he ever had that right given to him by the terms of the instrument.
It follows from these views that the judgment of the circuit court must be affirmed.
By the Court. — Judgment affirmed.