Tiernan v. Gibney , 24 Wis. 190 ( 1869 )

Paine, J.

Even if it should be conceded that there was enough in the evidence to take the contract out of the statute of frauds, still the plaintiff fails to establish a case for a specific performance. It is well settled that, where the proof leaves any of the essential terms of the contract doubtful, courts will not enforce a specific performance ; and such is the case here.

The whole controversy arose upon the question whether Gibney was to remain in possession of the farm until the next spring. The plaintiff claims that possession was to be given on payment. The defendants deny it, and claim that Gibney was to remain in possession until spring. The court below finds that the evidence leaves this fact in doubt. If so, that is a good ground for refusing specific performance, for certainly that was a material and essential provision of the contract. If the evidence is considered, it clearly does not sustain any more favorable conclusion on this point for the plaintiff’s case than that arrived at by the court below. Gibney and his son both swear that he was to retain possession till spring. The plaintiff swears to the contrary. Here are two witnesses against one. And there are some circumstances disclosed by the evidence, which, I think, tend to confirm Gibney’’s statement. Gibney never denied the parol agreement to convey the land.- On the contrary, according to his understanding of it, he was prompt, active and apparently anxious to comply with it. The plaintiff was dilatory, and, after several interviews, finally refused to pay until possession was delivered. The plaintiff’s conduct subsequent to this was just what might be expected if he had made up his mind that he might compel Gibney to relinquish that provision of the contract by which he was to remain on the farm till spring. He did not deny to Gibney that such was the agreement. He did not express any surprise at Gibney’s claiming that right, nor accuse him of violating the contract in so doing But he told him there was “no disappointment on his part,’’-and that, as soon as Gibney would “clear out,” the money was ready for Mm. The conduct of Gibney, on the other hand, was precisely what was to have been expected, if the agreement was in fact as he claimed it to have been, that he was to remain on the farm till spring. The plaintiff himself states, that, when he insisted on immediate possession, Gibney “grumbled considerably and went away.” Elizabeth Mahon, also, the plaintiff’s witness, uses the same language. She also tried to induce Gibney to give up the land, not by telling him that such was the agreement, but she said: “Clear out of the land ; and, just as soon as you give up the land, your money is ready.” He did not seem ¿0 accept her advice, but went around to" the front door, and saw the plaintiff. The latter repeated the same terms, and then she says: “Gibney grumbled a good deal at that, and went away very much dissatisfied.” She did not recollect what he said when he grumbled; but Gibney supplies her want of recollection in this particular, and swears that he told the plaintiff that such was not the agreement. That he did tell the plaintiff so, is not denied by either the plaintiff or Elizabeth Mahon, who was present. And neither of them pretends that the plaintiff at any time denied to Gibney that the contract was as he claimed it.

The conduct of both parties seems, therefore, only explainable upon the theory that both were aware that the contract was as Gibney claimed it, and that the plaintiff was trying to take advantage of Gibney’’s evident 'anxiety to get the money at once, to compel him to relinquish that stipulation. At all events, their conduct on both sides seems more consistent with this theory than with any other.

There is, therefore, the testimony of two witnesses against one, and the testimony of the two materially corroborated by the subsequent' conduct of both parties. And I do not attach any importance to the circumstance that the deed which Gibney prepared for delivery contained tlie usual clause granting all his estate in “possession,” etc. These parties had bargained for the entire farm by parol, and the fact that the deed sirbse-quently prepared for the vendor to deliver contained. the usual granting clause, without any mention of the right to retain possession till the next spring, has no tendency to show that such a stipulation was not contained in their parol agreement. If they would trust the entire bargain to parol, certainly the vendor would not have been likely to alter the ordinary form of deed in order that he might have written evidence of this particular provision. No conclusion more favorable to the plaintiff than that arrived at by the court below can therefore be drawn from the evidence. The plaintiff has certainly failed to remove all doubt on this question, and there is probably a preponderance of evidence in favor of the conclusion that the agreement was as stated by Gibney. If so, there ought to be no specific performance ; because Gibney was willing and anxious to comply, and the plaintiff was slow, and finally refused to comply without imposing new terms.

The case was decided by the court below not only on the ground that the' plaintiff had failed to establish clearly the contract as he claimed it, but also upon the ground that it was within the statute of frauds. But, as the first seems to be sufficient, it is unnecessary to examine the other.

By the Court. — The judgment is affirmed.