Wyman v. Utech

A motion for rehearing was granted. When the case was originally presented counsel and the court gave only minor consideration to the effect of the alteration made by Claude C. Wyman and the defendant upon Myrtle Wyman's rights under the original option. Accordingly we requested a reargument on that phase of the case.

A re-examination of the facts and further consideration of the questions of law involved compel us to recede from the position originally taken.

Plaintiff, Myrtle Wyman, wife of her coplaintiff, is one of the optionees named in the original contract. She took no part in the transaction of October 18, 1944, when her husband and the defendant altered the instrument. She knew nothing about the fact that changes were to be made or that they had been made until her husband later told her of it. Certainly, it cannot be said that she authorized the changes.

By the option she acquired an interest in the land therein described within the meaning of sec. 240.06, Stats., which provides that "No estate or interest in lands, . . . shall be . . . surrendered . . . unless by act or operation of law or by deed or conveyance in writing, . . ." Telford v. Frost,76 Wis. 172, 174, 44 N.W. 835; Kreutzer v. Lynch,122 Wis. 474, 100 N.W. 887; Wall v. Minneapolis, St. P. S. S. M. R. Co. 86 Wis. 48, 56 N.W. 367. To constitute a surrender "by act or operation of law" the "act," "to be effectual, however, . . . must be inconsistent with the continuance of such former estate or interest, and must, moreover, be actually accepted and acted upon by the other, and, in fact, all the parties concerned." Telford v. Frost, supra.

Mrs. Wyman did nothing before or after the alteration inconsistent with her asserted claim under the original option, nor is there anything to indicate that the defendant accepted or acted upon any action or omission by Mrs. Wyman. Defendant did not change her position in reliance upon or as the result of the conduct of Mrs. Wyman. There was no surrender of the interest which Mrs. Wyman acquired under the original option.

Defendant contends that Mrs. Wyman ratified the act of her husband in altering the option. But sec. 240.06, Stats., declares void any conveyance or surrender of an interest in real estate by an agent unless authority therefor be given in writing. There was no such authority here.

"Where formalities are requisite for the authorization of an act, its affirmance must be by the same formalities in order to constitute a ratification." Restatement, 1 Agency, p. 230, sec. 93.

The formality of a writing required for authorization is absent here as is the same formality required under the rule of ratification.

The doctrine of estoppel does not operate to permit the court to read ratification out of Mrs. Wyman's conduct. She did nothing, affirmative or negative, to induce the defendant to change her position to her prejudice.

The alteration of the option made by her husband without the authority of Mrs. Wyman did not affect the interest she acquired under the option. Wanta v. Perszyk, 207 Wis. 282,240 N.W. 183, 241 N.W. 377. She retained her rights under the original instrument and as a joint optionee may maintain specific performance with or without joining her husband as plaintiff even though it might be considered that he has repudiated the contract. 58 C.J., Specific Performance, p. 1128, sec. 435; Schaeffer v. Herman, 237 Pa. 86,85 A. 94.

It follows, therefore, that the learned trial judge was right in the statement contained in his memorandum decision:

"The same [the alteration] being void as to the plaintiff, Myrtle Wyman, then she has the right to insist upon the terms of the original agreement dated October 9, 1944, and the situation is not altered because her husband might also benefit thereby. She has a right to insist upon the terms of the option dated October 9, 1944, and it is immaterial that the property must be conveyed to her husband, as well as herself."

What has been said disposes of defendant's counterclaim which in effect demands no more than that the court declare hers the correct construction of the effect of the alteration.

By the Court. — Upon the grounds stated the former decision reversing the judgment is found to be erroneous. The previous mandate is withdrawn. The judgment appealed from is affirmed.