Jens v. Habeck , 259 Wis. 338 ( 1951 )

FRITZ, C. J.

Plaintiffs alleged in their complaint that on November 3, 1948, Robert and Ruth Berg sold and conveyed a tract of land to the defendants, Albert A. and Rose Habeck, and the Bergs sold to the plaintiffs, Donald M. and Leland L. Jens, the young trees and other nursery stock growing on about two acres of that land; and that the plaintiffs and defendants entered into a contract which provided: That plaintiffs shall have the right to enter upon said land at any time from November 3, 1948, to October 30, 1949, for the purpose of removing any or all of the nursery stock presently located upon said land; that defendants will not damage, destroy, or remove any of said nursery stock prior to October 30, 1949, and will permit plaintiffs to enter upon said premises with the necessary equipment required to remove said nursery stock; that plaintiffs will fill in any and all holes resulting from such removal and will leave the said premises level and in good condition following the removal thereof and all roots and stumps 'prior to October 30, 1949; and that plaintiffs shall have the right to enter said premises with the usual and necessary equipment to cultivate the nursery stock growing thereon, “which right sh'all expire on the 30th day of October, 1949.”

Plaintiffs further alleged that prior to October 30, 1949, they became ill and one was confined in bed at home and the other at a hospital; that immediately .upon one of them getting well he attempted to carry out the terms and provisions of said contract, but was denied access to said land upon which said nursery stock was located, and was informed by defendants that they considered the plaintiffs to be in default in their agreement on the ground that they had failed to remove said nursery stock on or before said date set forth in said contract; that plaintiffs again offered to carry out the terms and conditions of their agreement in respect to the removal of said trees and were ready, willing, and able to do so on or about November 2, 1949, and this offer to remove said trees pursuant to their agreement was made by the plaintiffs on several occasions immediately after October 30, 1949, and was refused by the defendants every time; that plaintiffs notified defendants in writing to that effect on December 6, 1949, through their attorneys that they were still ready, willing, and able to carry out their agreement; that defendants continued to refuse plaintiffs access to their property for the removal of said nursery stock; and that as a result of defendants’ failure to perform the said contract plaintiffs suffered damages of $1,000.

In support of defendants’ demurrer to the complaint they contend that by reason of the express provision in the contract in relation to plaintiffs’ right to remove the nursery stock, — “which right shall expire on the 30th day of October, 1949,”- — plaintiffs’ rights thereunder terminated absolutely on that date. At the time of the oral argument in relation to defendants’ demurrer, the trial court suggested that the law dealing with the right to remove timber under a so-called “timber deed” might be controlling in this action, and requested counsel to submit authorities on that question. But counsel for plaintiffs called the court’s attention to the fact that all of the Wisconsin cases cited were decided prior to the enactment of the Uniform Sales Act, ch. 121, Stats., in 1911; and that in sec. 121.76 of that act there is the definition:

“ ‘Goods’ include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.”

This definition is in accord with the conclusions stated in 39 Am. Jur., Nurseries and Nursery Stock, p. 489, sec. 1. See also Brown, Personal Property, p. 696, sec. 159.

Thereupon the court rightly concluded that the Uniform Sales Act has changed the law in Wisconsin so .that industrial growing crops, growing trees, and other nursery stock “attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale” are to be considered “goods” and are consequently personal property; and that as the nursery stock was personal property, the so-called “Timber Cases” in Wisconsin are not applicable.

But the court then concluded that there is no showing presently that time was of the essence in the performance of the contract; that therefore plaintiffs would have at least a reasonable time after October 30, 1949, to remove their personal property, subject to any damages caused to defendants on account of plaintiffs’ failure to remove the nursery stock prior to the time fixed in the contract, and that therefore the demurrer must be overruled. The court’s conclusions to that effect cannot be sustained. That time was of the essence as to the matters which were to be performed by plaintiffs is clearly evident in view of the express and definite provisions in the contract dated November 3, 1948, to the following effect:

That plaintiffs shall have the right to enter upon the defendants’ premises for the purpose of removing any or all of the nursery stock with the necessary equipment required therefor at any time from the date of the contract to October 30, 1949; that defendants will not damage or destroy or remove any of said nursery stock prior to October 30, 1949; that prior to October 30,1949, plaintiffs will remove all roots and stumps and level and leave said premises in good condition following their removal of said stock; and that plaintiffs shall have the right to enter upon said premises to cultivate the stock growing thereon, “which right shall expire on the 30th day of October, 1949.”

Under those unequivocal provisions in the contract, which are clearly too explicit to admit of any doubt, plaintiffs had ample time and opportunity from November 3, 1948, to October 30, 1949, — almost twelve months, — to remove the nursery stock from defendants’ land.

There is no allegation in plaintiffs’ complaint as to why all of the nursery stock desired by plaintiffs was not removed, and the holes filled up, and stumps removed, and the land leveled by plaintiffs by October 30, 1949, as was expressly prescribed by their contract; or that they were prevented by any cause whatever from removing all the nursery stock they desired, except the bare allegation that immediately prior to October 30, 1949, they became ill and were confined to their beds; and there is no allegation that plaintiffs could not have hired other persons to remove said nursery stock by the time plaintiffs’ right to do so expired on October 30, 1949. Neither is there any allegation in the complaint that there was any breach of the contract in any respect by defendants.

In view of the facts that in four paragraphs of plaintiffs’ contract the period expiring on October 30, 1949, was specifically designated as the time within which plaintiffs were entitled to exercise their rights and were required to perform their duties under the contract, and had the right to remove the nursery stock “which right ” as stated in the contract, “shall expire on the 30th day of October, 1949,” it is clearly evident that the time thus specified was intended to be of essence in respect to plaintiffs’ exercise of their rights under the contract. Because of plaintiffs’ failure in those respects the court erred in overruling defendants’ demurrer to the complaint.

By the Court. — Order reversed and cause remanded with directions to order that defendants’ demurrer is sustained.