Buck v. Pond

105 N.W. 909, 126 Wis. 382, 1905 Wisc. LEXIS 265

• Court: Wisconsin Supreme Court
• Decided: December 12, 1905
• Status: Published

Opinion

WiNsnow, T.

The defendant’s claim is that the evidence shows that the plaintiff went into possession of the premises and performed the labor for which he sues under a valid and enforcible contract for the sale of the land, and that hence the plaintiff’s remedy,is by action to enforce the contract and not by action for the value of labor performed and materials furnished. Cameron v. Austin, 65 Wis. 652, 27 N. W. 622. This claim was rejected by the trial court, and we think rightly so. Specific performance of a contract will not be decreed unless its essential terms are clearly and definitely expressed. Courts will enforce a contract already made, but will not supply material and missing portions and thus at the same time malee as well as enforce a contract. Where a contract contemplates or provides for deferred payments, or the giving of credit for a part of the purchase money, the times when such deferred payments are to be made are essential parts of the contract, and, if such times be not fixed, the contract is uncertain and incomplete and cannot be enforced. Schmeling v. Kriesel, 45 Wis. 325. The memorandum before us in the present case very clearly contemplates that there was to be credit given for $100 of the purchase price; but it is absolutely silent as to the term of that credit, hence it comes within the rule of the case last cited.

Nut the appellant claims that, even if there was no valid written contract, still, if there was a definite parol contract under wbicb tbe plaintiff went into possession and performed tbe labor, it was enforcible under familiar rules of law, and be further claims that be offered to show such a parol contract and that tbe evidence was rejected. Examination of tbe case shows that there was no such offer. Tbe defendant was asked what tbe agreement be made with tbe plaintiff was, and an objection to bis statement because it was not tbe best evidence was sustained. He then stated that be bad seen tbe writing (wbicb was evidently tbe memorandum aforesaid) before, and that “that is tbe agreement that I gave Mr. Bucle in tbe sale of this land.” There was no intimation that there was any oral agreement differing from or in addition to tbe written memorandum, and there was no offer to prove any such oral agreement.

It is claimed that tbe doctrine of tbe Schmeling Case was overruled in tbe case of Hadfield v. Bartlett, 66 Wis. 634, 29 N. W. 639, but we are unable to see bow this claim has any foundation.

There being no contract wbicb tbe plaintiff could enforce for tbe conveyance of tbe land or tbe execution of a land contract, be was clearly entitled to recover for bis labor and materials expended upon tbe defendant’s land at bis implied request.

By the Oowrt. — Judgment affirmed.