Wirthwein v. Dailey

| Wis. | Dec 11, 1923

Rosenberry, J.

Sec. 2304, Stats., provides:

“Every contract for the leasing for a longer period than one year or for the sale of any lands or any interest in lands shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.”

In order to comply with the statute the memorandum “must be definite in respect to the intention of the parties, who they are, their relation one to the other, who is the seller, who the buyer, the property,- the price, and the terms of payment.” Harney v. Burhans, 91 Wis. 348" court="Wis." date_filed="1895-11-08" href="https://app.midpage.ai/document/harney-v-burhans-8184974?utm_source=webapp" opinion_id="8184974">91 Wis. 348, 64 N. W. 1031. Teste4 by this requirement the memorandum is clearly insufficient. It does not describe the property. It is the contention of plaintiff that it can be shown by parol evidence that the parties viewed certain premises and that the premises so viewed are the ones referred to in the memorandum as the “house and lot.” This contention is unsound and if sustained would permit any memorandum, however indefinite, to be made certain by parol evidence and the provisions of the statute would thereby be made ineffective. See Mann v. Becker, 171 Wis. 121" court="Wis." date_filed="1920-03-09" href="https://app.midpage.ai/document/mann-v-becker-8193024?utm_source=webapp" opinion_id="8193024">171 Wis. 121, 176 N. W. 765; Hannon v. Scanlon, 158 Wis. 357" court="Wis." date_filed="1914-10-06" href="https://app.midpage.ai/document/hannon-v-scanlon-8191486?utm_source=webapp" opinion_id="8191486">158 Wis. 357, 148 N.W. 1082" court="Minn." date_filed="1914-10-09" href="https://app.midpage.ai/document/state-ex-rel-virginia--rainy-lake-co-v-bashko-7977376?utm_source=webapp" opinion_id="7977376">148 N. W. 1082.

The respondent contends that this case is within the rule-laid down in Wis. Cent. R. Co. v. Schug, 155 Wis. 563" court="Wis." date_filed="1914-02-03" href="https://app.midpage.ai/document/wisconsin-central-railway-co-v-schug-8191174?utm_source=webapp" opinion_id="8191174">155 Wis. 563, 145 N. W. 177, and Douglas v. Vorpahl, 167 Wis. 244" court="Wis." date_filed="1918-04-03" href="https://app.midpage.ai/document/douglas-v-vorpahl-8192582?utm_source=webapp" opinion_id="8192582">167 Wis. 244, 166 N. W. 833. In the Wisconsin Central R. Co. Case the description was “a deed of conveyance of those certain tracts of land which said railway company is to acquire from William Schug and George Wickenhauser.” Both parties knew where these last named tracts of land were, and they were exactly delineated on a map- which was.before the parties. Under the authorities this was clearly a sufficient description. There was only one tract of land which would answer the calls of the memorandum. Any house and lot anywhere would answer the description given in the memorandum in this- case.

In Douglas v. Vorpahl, 167 Wis. 244, 166 N. W. 833, it is held that where no time of payment is specified it is implied that the payment is to be made in cash on the delivery of the deed and abstract showing good title, a reasonable time being allowed for examination of the abstract. The premises in that case were specifically described. The case is not in point as to the sufficiency of the description.

For the reasons stated we múst hold that the memorandum does not comply with the statute.

By the Court. — Judgment reversed, with directions to dismiss the plaintiff’s complaint.