Wanner v. Wanner , 1907 Wisc. LEXIS 314 ( 1907 )

WiNsnow, J.

The findings of the referee to the effect that the defendants were justified in refusing to furnish table board, care, and the annual cash payment after December 1, 1900, are vigorously attacked, but we find ourselves unable to say that they are against the clear preponderance of the evidence. The evidence shows that for more than two years after the making of the deed the parties lived in different portions of the same house fairly harmoniously, but that during the third year personal difficulties of a most serious nature commenced, and continued with ever increasing violence until the final break came in November, 1900. It would not be useful to attempt to state the testimony as to these difficulties in detail. It is a tale of insult, abuse, crim-ination, and personal violence upon both sides which is not pleasant to contemplate. Each party claimed that the responsibility for these deplorable family difficulties lay with the other, and the referee found, with ample evidence to support his conclusion, that it lay with the plaintiffs, and that a further continuance of any relations involving personal care or the furnishing of board was practically impossible. Having come to this conclusion, he determined that the personal relations and duties under the contract should cease, that the defendants should keep the farm, pay all sums that they had agreed to pay therefor in cash, render an equivalent in cash for all personal care and board which had been suspended after the difficulties culminated in open war, make payments of cash instead of board and services in the future, and pay the reasonable funeral expenses of the plaintiffs at death. It is objected that the court has made a new contract for the parties and that the court has no power to do such a thing. This might indeed be a serious objection were the defendants here appealing from the judgment, but they are not.

The question is, upon the plaintiffs’ appeal, whether the judgment does not give them as much as or more than they are entitled to. They first breached the contract. They made it practically impossible for the defendants to carry out their agreement to furnish board, fuel, and personal services. Plainly they could not demand rescission. It would be a serious question whether in this situation they had not forfeited their right to enforce the conditions of the bond as to board and personal service. Certainly they can have no ground for complaint when the court, in lieu of these conditions which they themselves have practically prevented the defendants from carrying out, adjudges that the defendants render to them annually what seems to be a full equivalent in cash. Notwithstanding their own default, they are to receive under the judgment all the money payments agreed on, besides a full money equivalent for the board, fuel, and personal services provided for in the bond. If they were entitled to any relief they were entitled to no greater relief than this.

By the Oowrt. — Judgment affirmed.