Turner v. Pierce
31 Wis. 342
Wis.
1872
Check Treatment

Lead Opinion

Cole, J.

We think the evidence in this case1 most clearly and conclusively shows that the action was prematurely 'brought. It was commenced on the 5th of March, 1866, to foreclose the contract, because the defendant was in default for not making payment according to its stipulations. And it is very plain to us that nothing at this time was due upon it. For, putting out of view for the moment what subsequently occurred, showing that the plaintiff had no title to three fourths of the *353land in section fourteen wbicb be assumed to sell, it is admitted that tbe note and mortgage given by the defendant on the Columbia county lands was treated as the payment of the $1,000 which was to be made on the execution of the contract. The next payment, of $1,000 and interest on the unpaid purchase money, fell due the 1st of August, 1865. The subsequent payments were to be made, of $1,000 on the first days of August, 1866, 1867, 1868 and 1869, and the last, of $600, on the 1st of August, 1870, with interest at each annual payment on all unpaid purchase money. On the 17th of August, 1864, occurred the transactions which seem to have confused the case. According to our understanding of the arrangement then made between the parties, it was simply this. The plaintiff surrendered and delivered up to the defendant the $1,000 note and mortgage on the Columbia county lands, and discharged that mortgage. He also conveyed by deed the eighty in section eleven, and assigned the school land certificates of the two forty-acre tracts in section ten. And the defendant then paid, in money, by note and mortgage, and by discharging the amount due the state on the school land certificates, the sum of $4,000, on the contract With the exception of thus anticipating the payments before they became due, we do not think the evidence shows any other modification or change in the contract. This being so, it is very apparent that there was nothing due the plaintiff on the contract when the action was commenced.

If we should look into the history of the transactions a little ' further, the. plaintiff’s action would appear to have been still more premature. The title to one hundred and twenty acres in section fourteen failed. The circuit court found the value of that one hundred and twenty acres to be $1,882.68. Deducting this amount from the contract price of the land mentioned in the agreement, which was $6,600, it leaves $4,767.32 for the land which the plaintiff could give a title to. As the entire contract price is thus decreased, the installments due from year to year would be correspondingly diminished. The *354installments of $1,000 would each lie proportionately reduced, and would amount to about $722 each, and the last one to about $433. So that upon this basis there would be unpaid on the contract, principal and interest, on the 17th day of August, 1864, about $5,043. And the $4,000 then paid would discharge all installments up to the one due August 1, 1869, and some portion of that even.

Whatever view, therefore, is taken of the matter, it is very manifest that the defendant was not in default in making payments on the contract when the suit was commenced, and consequently that the plaintiff was not entitled to a foreclosure of the contract. The circuit court, however, adopted the theory that the $4,000 which was paid August 17, 1864, was intended to be, and in fact was, a payment for the one hundred and sixty acres on that day conveyed by the deed and the assignment of the school land certificates, and was agreed upon as the consideration for those tracts; this being the relative value of the land so conveyed as compared with the whole land described in the contract. In other words, the court states substantially, in its finding, that the object and legal effect of the transactions which took place on the 17th of August, 1864, were, “to eliminate the land thus conveyed and the consideration therefor from the contract, leaving it in other respects unmodified and in force according to its terms for the balance of the land and the remaining consideration.” We do not think the evidence supports this conclusion. Eor it is apparent that according to this view the $4,000 was apportioned by the parties to the payment of the one hundred and sixty acres in sections ten and eleven, and was not intended to be applied generally on the contract. This, of course, would leave a proportionate amount of each, installment unpaid and unprovided for. But, ¿s already remarked, to our minds the evidence establishes the fact beyond doubt, that the $4,000 was intended to be and in fact was paid generally on the contract, without any application other than such as the law would make. Mr. George B. *355Smith., who transacted the business chiefly, states in his testimony most explicitly, that he understood from the parties that the $4,000 was paid generally on the contract, to anticipate the payments not due; and he is fully sustained in this statement by the receipt which was given at the time. That receipt expressly says that the $4,000 was “ to apply on the land contract,” a form of expression which would not have been used if the real understanding was that this sum was paid and received as the purchase money agreed upon for the lands in sections ten and eleven described in the contract. Indeed, we regard the proof entirely conclusive upon the point that no such arrangement was made, and that there was no apportionment of this $4,000 to the payment of any particular land. This being so, that amount being paid generally on the contract, the law would apply it to discharge the payments or installments first becoming due. In any event there is no ground for saying that the defendant was in any default when this suit was instituted.

A supplemental complaint was filed in the action September 7, 1870, to which the defendant answered. This sets up claims against the defendant accruing after the commencement of the suit, for which a personal judgment was given. These supplemental matters are not germane to the relief sought in the original complaint, are not in aid of that relief, but constitute distinct causes of action which can be more appropriately adjusted by themselves. We shall not go into that branch of the case; for it seems to us, if we are right in the ■ views already expressed, the action must be dismissed. For clearly the plaintiff was not entitled to a foreclosure of the contract when this action was commenced.. "We do not, then, see upon what principle the cause can be retained for a final accounting between the parties. True, the defendant asks that the plaintiff convey the undivided fourth of the tract in section fourteen, and the ten acres in section twenty-one. But this relief is asked rather as a defense than as a counterclaim. Had the defendant asked *356for a final accounting of all matters growing out of the ejectment suit and failure of title, and a determination of the amount, if any, due upon the contract, the suit might "be retained for that purpose. As it is, we do not well see how any other course can "be adopted than to order the action dismissed. We regret this result, since there were some special circumstances suggested on the argument which render it exceedingly desirable that all matters in controversy between these parties should be brought to a speedy termination.

We think the judgment of the circuit court must be reversed, and the cause be remanded with directions to dismiss the action.

By the Court.— So ordered.

On a motion for a rehearing, the respondent’s counsel called the attention of the court to the fact that the order permitting the filing of the “ amended and supplemental complaint,” in 1870, was made upon the written consent of defendant’s counsel ; and he argued, 1. That it is entirely competent, and the correct practice, under the present system, for the court, upon the motion to admit a supplemental complaint, to adjudicate whether it presents a cause of action matured since the suit began, and to reject the proffered pleading on that ground, or to admit it. 2 Tay. Stats., 1447, sec. 45; Lampson v. McQueen, 15 How. Pr. R., 345; McCullough v. Colby, 4 Bosw., 603; Penman v. Slocum, 41 N. Y., 53; Wattson v. Thibou, 17 Abb. Pr. R., 184; Orton v. Noonan, 29 Wis., 541. 2. That a favorable decision upon such a motion is an adjudication of the right to have the matters admitted in the supplemental complaint tried in the cause, just as an order permitting a proposed amendment is an adjudication that the matter received does not so substantially change the nature of the action or defense as not to be triable in the suit; that after such an adjudication the court would not permit the question to be raised anew by answer or on the trial, but the decision, not being excepted to or appealed from, remains binding in the cause. 3. That in matters of practice a *357party will not be beard to object, at a late stage of tbe proceedings, upon tecbnical reasons wbicb might properly bave been urged at tbe threshold to tbe order on wbicb tbe proceedings are based, of tbe bearing of which be bad due notice; and this is so a fortiori of an order made in pursuance of bis written consent, and in a case wbicb has thereupon been laboriously tried upon tbe merits, and a just judgment rendered therein. Penman v. Slocum, supra; Cogswell v. Colley, 22 Wis., 399; Vail v. Remsen, 7 Paige, 206; Ubsdell v. Root, 3 Abb. Pr. R., 142; Pulling v. Columbia Co., 3 Wis., 337; Leonard v. Rogan, 20 id., 540. 4. Counsel further argued that in any view of tbe effect of tbe transactions of 17th August, 1864, upon tbe contract, there was due on tbe 1st of August, 1865 (before tbe commencement of this action), at least the interest upon all the sums then unpaid, and tbe default in paying such interest was a sufficient cause of action.





Rehearing

Tbe motion for a rehearing was denied, and tbe following opinion filed, at tbe June term, 1872.

Cole, J.

On tbe motion for a rehearing tbe counsel for tbe plaintiff insists that tbe defendant has waived tbe objection that tbe action was prematurely brought, and that be ought not to be permitted now to make it. The facts upon wbicb be chiefly relies to show a waiver, are tbe following: On tbe 11th of August, 1870, tbe plaintiff, by bis attorney, gave notice of a motion to be beard on tbe 19th of that month, at tbe court room in Janesville, for an order granting leave to file an amended and supplemental complaint served with tbe notice of tbe motion. The defendant’s counsel, a few days thereafter, consented in writing that an order might be made amending tbe complaint as proposed in tbe motion, and that tbe venue be changed to Dane county. Tbe circuit court for Rock county subsequently, on tbe motion thus noticed, and this written consent, ordered that tbe supplemental and amended complaint served with the notice be filed as tbe plaintiff’s complaint in the action, and *358that the defendant answer the same within twenty days from the service of a copy thereof. Upon this being done, the counsel entered into a stipulation, in substance, that the defendant Pierce should have twenty days to answer, and that the place of trial of the issues joined and to be joined in the action be changed to Dane county, each party waiving any and every objection which he might have otherwise taken to such change of venue, or the jurisdiction of the circuit court for Dane county in consequence of such change. An answer was after-wards filed to the amended complaint, in which, among other things, it is stated anji averred, that, from the matter set forth in the complaint itself it appeared that there was nothing due on the contract when the suit was commenced. These are the facts upon which the plaintiff mainly relies to show a waiver of the objection that the action was prematurely brought. And the question is, Do they show any waiver? We think not. True, the attorney of the defendant consented in writing that the court might make an order allowing the plaintiff to file his amended and supplemental complaint. But it is obvious that he did not thereby waive the right to take any legal objection which might exist to such amended complaint when filed ; and it would be most unreasonable to give the stipulation any such construction. Did he waive his right to insist, either by answer or demurrer, that the complaint was insufficient and stated no cause of action ? Certainly not. It is said that he ought then to have taken the objection that the suit was prematurely brought. This is precisely the objection he did take, and which he had the right to insist upon in his answer. He there stated that from the facts set forth in the complaint it appeared there was nothing due on the contract at the commencement of the action. Again, it is said that the circuit court, in granting leave to file the supplemental complaint, determined its sufficiency, and decided that the matters therein contained were proper causes of action, and this order, not having been appealed from, is rea adjudícala. In this case leave to file the supplemental com*359plaint was granted as a matter of course, the defendant having consented that such an drder might be entered. But the legal effect of the order, granting leave, ought not to he held as a binding adjudication upon the parties as to the sufficiency of the supplemental complaint. All that such an order fairly decides is, that the court allows the supplemental complaint to be filed, leaving the question of its sufficiency to be determined in the usual way. Beyond this the order did not attempt to adjudicate.

We do not deem it necessary to add anything further in answer to the argument made in support of the motion for a rehearing.

■ By the Court.— Motion denied.