Stout v. Weaver ( 1888 )

Orton, J.

This is a complaint for the specific performance of the following contract: “Ashland, Wis., April 19, 1887. Received of F. E. Stout five dollars as partial payment on ten acres of land bought of T. Bardon and now in my possession. I agree to sell this land to F. E. Stout for $150 per acre, $500 to be paid when contract is given, $500 in one year, and $500 in two years. [Signed] Feed Weavee.” The complaint contains the necessaiy aver-ments of performance and offer to per|orm by the plaintiff, and demand and refusal to comply by the defendant. The answer is a general denial.

On the trial, the plaintiff, as a witness in his own behalf, testified, without objection, substantially that the contract referred to in the agreement was the contract between the defendant and one Thomas Bardon, by which certain ten acres of land ivere purchased by the defendant from said Bardon, dated November 24,1885, and that the same land was sold to the plaintiff. This contract was introduced in evidence, against the objection of the defendant. According to the terms of said contract said Bardon was to make the defendant a deed to said ten acres, on the paj^ment of $500 and interest, November 24, 1890. This contract was to be assigned and delivered to the plaintiff upon the payment of the first $500 mentioned in the agreement above set forth. By reference to said contract both the description of the lands sold and the meaning of the reference to a certain contract which was to be given or delivered on the payment of the first $500, were made certain. It is now contended that such evidence was incompetent, and that the contract sought to be enforced is void for uncertainty. It will be observed that both the Bardon sale to the defendant, and that a certain contract was to be delivered, are mentioned in this contract. By reference to the Bardon sale, the contract meant is made clear. This evidence was competent, “not to vary the terms of a written contract or to explain patent ambiguities in it, but to facilitate the construction of terms obscure in themselves, in relation to the .subject matter, on the face of the contract.” This quoted language is taken from the opinion of Chief Justice Ryan in Lyman v. Babcock, 40 Wis. 503, a case involving similar references in the contract. Such evidence is proper, “ in order to ascertain the nature and qualities of the subject to wffiich the instrument refers.” 1 Greenl. Ev. §§ 286, 288; Ganson v. Madigan, 15 Wis. 144; Prentiss v. Brewer, 17 Wis. 635; Rockwell v. Mut. L. Ins. Co. 21 Wis. 548; Sawyer v. Dodge Co. Mut. Ins. Co. 37 Wis. 503; Horner v. C., M. & St. P. R. Co. 38 Wis. 165. There can be no question but that this evidence was proper.

The court found the terrtis and description of the land of the Bardon contract; and that said contract was the one referred to in the agreement set out in the complaint; and that the intention was that said contract should be assigned by the defendant to the plaintiff on the payment of the first $500; and that the plaintiff had substantially performed, or is willing to perform, his contract; and that the defendant has refused to perform on his part,— and the conclusion of law is that the defendant assign to the plaintiff said contract, subject to the payment of said $500 and interest to said Bardon, to be deducted from the $1,500 due upon the contract in suit. A deed of the premises could not be obtained, on account of the money payable to Bar-don not being yet due. The findings were excepted to by the defendant. This judgment is as favorable to the defendant as possible, and he has no right to. complain. He denied the contract and the plaintiff’s rights under it, in his answer, without alleging anything affirmatively against the relief demanded, and the evidence was that when the plaintiff made demand of performance he said that “ he wished to back out, and had sold the land to some one else, and that the plaintiff would never get it.”

By the Oourt.— The judgment of the circuit court is affirmed.