Gates v. Parmly

87 N.W. 1096, 113 Wis. 147, 1902 Wisc. LEXIS 25

• Court: Wisconsin Supreme Court
• Decided: February 18, 1902
• Status: Published

Opinion

Tbe following opinion was filed November 29, 1901:

BakdeeN, J.

1. We bave been greatly embarrassed and •our labors bave been increased by tbe printing of a vast .amount of irrelevant matter in the case. Tbe printed matter ■covers nearly 500 pages, and contains at least 150 pages of rubbish that bas no place in tbe printed case. Tbe complaint, tbe findings on tbe former trial and exceptions thereto, 'the opinion of the" trial court, the first judgment, and many -other papers are set out at length. Counsel bave, with great industry and fidelity, printed tbe indorsements, file marks, .and admissions of service on tbe back of each paper, although no question bas been raised with reference thereto. They ••serve no purpose but to incumber tbe record and weary tbe -court. Rule VIII requires tbe appellant to print a complete abstract or abridgment of so much of'the record "as may be ■necessary to a full understanding of tbe questions presented ■for decision.” Tbis case furnishes a most flagrant violation -of that rule.

2. Upon the argument the plaintiff asked leave to file a ’brief prepared by himself, tbe better to aid tbe court to a -solution of tbe questions of fact presented. We then directed ■that it might be filed with tbe clerk, subject to future inspection. We find that it in no way conforms to tbe rules. It -contains many statements of alleged fact contrary to tbe •court’s findings, without any reference to tbe record to substantiate them, and which, from their very nature, could not have been therein. • But, worst of all, it contains many statements disrespectful to opposite counsel and abusive of defendants. The latter are charged with producing and using false testimony. The attorneys are accused of “juggling with the abstracts” and keeping them from the attention of the court, and using others which showed defective titles. One of the attorneys, a most honored member of this bar, is said to have been allowed to “swipe four forties for practically nothing as a consideration,” and another is charged with’ “sliding in descriptions or sliding them out” while his associate was arguing the case. Charges of this kind cannot be tolerated. They are contrary to Rule XXVTI, and the clerk is directed to strike the brief from the files.

8. Prior to the filing of findings by the trial court, but after the completion of the hearing by the referee, the plaintiff made a motion to be allowed to rescind the contract in suit upon repaying the money he had received, and requiring the defendants to reconvey the lands conveyed to them thereunder. The court denied the motion, and, except for the fact that it is argued with some seriousness in the brief of Mr! Cole that this ruling was erroneous, we should pass it without comment. On the former hearing this court said:

“The defendants cannot now be allowed to rescind the contract. They made no case in their answer and no claim in it 'for rescission.”

On the motion for the rehearing the defendants urged a rescission of the contract, and were then anxious to secure it. After a 'trial before the referee, and the lapse of time, the position of the parties has become reversed. The plaintiff is the one now seeking a rescission. Ho more appropriate answer can be made to him than was given the defendants. He made no claim for a rescission in his complaint, and cannot now be heard to urge claims for relief on that ground. The situation of the parties and the conditions surrounding them have entirely changed. The application for sncb relief came entirely too late.

4. Under the former decision in this court, the only matter left open was'to ascertain the relative value of which the lands in the so-called “Defective list,” to which title had failed, bore to the value of the entire tract conveyed, and to-mate an accounting of the matters properly growing out of the same. Pursuant to the suggestion therein made, the lower court granted a reference, at which both parties appeared and offered testimony. The referee made findings which were-unsatisfactory to plaintiff. He made application for and obtained an order opening the case for further testimony. The referee adhered to his first findings, except that he increased the aggregate value, of the entire tract of land some $1,840, the new valuation being placed at $40,947. Upon review of his findings by the court, certain modifications of the referee’s findings were made as noted in the statement; the most important being an increase in the referee’s valuation above mentioned to $45,000, which was equivalent to the original purchase price of the land. Both parties complain of this change. The plaintiff insists the value should have been increased to at least $60,000, while the defendants claim there is no warrant in the testimony for changing the figures of the referee.' The controversy arises chiefly over the values that ought to be placed upon about 184 forties of land which two of defendants’ witnesses, who had made a personal examination, classed as worthless. On the first hearing the referee apparently considered them as valueless. On the second hearing he valued them at $10 per forty, which accounts for the changes in his figures. As near as we can make out from the rather haphazard condition of the testimony, several witnesses for plaintiff put the value of these lands at from fifty cents to as high as $2.50 per acre. It is a matter of great difficulty to sift out and apply the testimony to any given forty and we •are given very little assistance in the briefs of counsel. The referee seems to have felt bound by the Huntly estimate as to condition and value. There was, however, quite a volume of testimony, somewhat general in its nature, placing values considerably in excess of the figures on this estimate. The original purchase price of the land was a circumstance tending to show values, and was proper to be considered. Without going into particulars,- we think there was ample testimony to authorize the court in increasing the aggregate value of the entire tract to at least the figure fixed by him. We are not convinced that such value should be increased, and therefore confirm the finding in this respect.

5. The plaintiff now claims that he should have been allowed interest on the amount found his due from the date of the filing of the former mandate in this action. The plaintiff came into a court of equity for relief, when he had none at law. He had made an imprudent contract, and admitted in his complaint that he had not completed his contract “to its fullest extent.” He had stipulated in his contract that the balance of the purchase price of the land should not bear interest until he had furnished an abstract showing title as required thereby. The title to a large number of tracts' had failed, and performance on his part was practically impossible. In a court of law he had no remedy. He could not have collected a dollar of the purchase price unpaid. He sought the intervention of a court of equity, and on the former hearing it was said that when a final balance was struck he might have judgment without interest. We cannot now revise that judgment. As it was there announced, so must it stand. That fiat must govern the parties and this court in all matters involved in this and any subsequent litigation.

6. The plaintiff attacks the value placed by the referee and court on the lands included in the so-called “Defective list,” the title to which failed. We see no reason for disturbing the conclusion reached, by them, except in the particulars hereinafter mentioned. The ten forties known as the “Atlee lands” were disposed of by the former opinion. The only thing the lower court had to do was to ascertain their value. While it was said that the defendants should quitclaim h> plaintiff the lands in the defective list, yef that must he considered in connection with what was said by the court with relation to these very lands. In 93 Wis. 319, it is said:

“Atlee brought an action to recover the lands, and it was compromised by Parmly, trustee, quitclaiming the lands to him for $184.37, while acting in good faith on the theory,, 'induced by the plaintiff’s conduct, that the title was bad.”

The defendants were to be charged with $184.37 they received, less $64.01 of redemption money drawn and retained by the plaintiff. The theory upon which plaintiff was to be-charged with the value of these lands was that they were an. essential part of the entire' tract, the title to which failed the quitclaim by defendants having been induced by the plaintiff’s conduct, and given in compromise of the pending, suit. In view of what was said in the former opinion, we cannot believe that it was intended that defendants were to go through the empty ceremony of quitclaiming these lands-to plaintiff, when they had been induced by him to part with whatever interest they had to the original owner. There is, however, another matter in this connection which seems to-have been overlooked. As already stated, the former mandate required the defendants to quitclaim to plaintiff the' lands in the defective list. The quitclaim as to the “Atlee lands” has already been disposed of. As to the other lands, the court finds by the fifth finding that such requirement has. been fulfilled. That finding has not been excepted to by the' plaintiff, and cannot he reviewed. It must stand as a verity. But in finding 9 the court declares that the S. E. S. W. 34— 25 — 2 and lot 7, 27 — 24—2 had been sold by defendants; but the time when, or the amount received therefor, was-not clearly shown by the evidence. Both of these tracts were-included in the list of defective titles; the former being ¡valued at $120, and the latter at $488. To get equity, the defendants were bonnd to Bo equity. The claim to very many of these lands was based upon tax titles. The requirement to reconvey by quitclaim was undoubtedly based upon the idea that some interest, more or less valuable, had been passed by the original deed. Whatever that was, the plaintiff was entitled to it when allowance was made for the value of the lands in deduction from the original purchase price. If defendants had sold these lands, or any parts of them, and had put it beyond their power to comply with the mandate of the court, it was their duty to make full discovery of the facts, so that the court could adjust the equities on some other basis. This they failed to do, and yet they were given the full value of these lands, as stated, with six years’ interest. Having sold the interest they were required to reconvey in the two tracts mentioned, and having failed'' to advise the court of the profit realized, they are in no position now to exact the full “pound of flesh” from their adversary. By the judgment of the court they get not only the original value of the land deducted from the amount they were to pay, but also whatever they received from the sale. Having voluntarily disenabled themselves from performing the court’s mandate, and having failed to make full disclosure with reference thereto, we do not think they should, be allowed to- include the value of these parcels in the defective list. The value of the lands in the defective list should therefor be but $5,441, instead of $6,049. This item of the account would stand as follows, computing interest at seven per cent, for three years and seven and one-half months, and at six per cent, for two years, four and one-half months:

Principal . $5,441 00

Interest at seven per cent. 1,380 66

Interest at six per cent. 775 32

Total . $7,596 98

’ — making a difference in favor of plaintiff of $848.92.

7. Under tbe terms of the contract as construed in the former decision (93 Wis. 317), the defendants were entitled to deductions on account of defective title to 800 acres mentioned in the contract, in addition to the lands above mentioned, of the value of $5,080. In the ninth conclusion of law the court allowed this item, hut commenced his computation of interest from November 1, 1890, when the date should have been August 15, 1889, the time when plaintiff was under contract to furnish title. The interest should have been allowed for a period of six years, — three years seven and one-half months at seven per cent., and two years four and one-half months at six per cent. This makes a difference of $61.37 in favor of defendants. The principal and interest should have been $7,092.92, instead of $7,031.55.

8. In the eleventh finding of fact the court finds that defendants had paid $679.87 for taxes, etc., on lands the title to which had failed, which, with interest, amounted to $966.03. In the seventh conclusion of law he says the sum first mentioned should be allowed without interest, because interest was not allowed plaintiff on the value of the timber sold by defendants on these same lands; yet when he comes to make up his statement for judgment, in conclusion 12, he allows the item at $966.03, which includes $286.16, interest to the date of the referee’s first report. The idea of the court seems to have first been that, as there were items of credit to plaintiff amounting to $1,063.36 upon which no interest was allowed, and items of credit to defendants amounting to $1,012.47 upon which he disallowed interest, it would be a fair offset. Had he carried this conclusion into the judgment, there would have been no reasonable ground for complaint. As to these items, one party was as justly entitled to interest as the other, and the offset of one against the other was, as the court said, “a fair and equitable adjustment” between the parties. His failure to carry this adjustment into' tbe judgment resulted to tbe prejudice of tbe plaintiff in tbe amount of $286.16.

9.Tbe former opinion beld that defendant should be allowed credit for $4,000 for timber 'cut from tbe lands conveyed by tbe Northwestern Lumber Company, with interest from tbe time tbe last sum was paid plaintiff by tbe company. In conclusion 10 tbe court allowed interest for sis years from November 1, 1890. Tbe defendants insist that such allowance of interest should have been to tbe date of tbe findings. Tbe writer of this opinion believes tbe trial court’s view was right, but tbe other members of tbe court are of opinion that a proper construction of tbe former decision requires the adoption of the defendants’ contention. This necessitates a modification of tbe allowance as follows:

Principal sum . $4,000 00

Interest from November 1, 1890, to April 1, 1893, two years and five months, at seven per cent.. 676 65

Interest from April 1, 1893, to November 23, 1900, seven years, seven months, twenty-two days, at six per cent . 1,834 65

Total .'. $6,511 30

Amount allowed by the court. 5,536 65

Difference in favor of defendants. $974 65

10. Tbe court directed tbe entry of judgment for plaintiff without costs to either party, except that plaintiff was to pay tbe costs of tbe reference. We confirm that conclusion, without comment. There are other contentions in tbe case, but we do not regard them of sufficient importance to re1quire discussion. In so far as they attack tbe conclusion of tbe court below, they must be considered overruled.

11. Tbe views hereinbefore expressed necessitate a slight modification of tbe judgment. Tbe total credits herein found for plaintiff are $1,135.08. Defendants’ credits are $1,036.02, making a net balance in favor of plaintiff of $99.06. Tbe judgment will be modified by adding tbe amoRint to tbe plaintiff’s recovery as of tb© date, when entered. \

By the Court. — Tbe judgment is modified as directed in tbe opinion, and as so modified is affirmed. No costs are allowed, except that tbe defendants must pay tbe fees of tbe clerk of this court, and for .100 pages of tbe printed case.

Both parties moved for a rebearing.

Eor tbe plaintiff there was a brief by Rublee A. Cole, and for tbe defendants there was a brief by 8. M. Marsh and L. M. Sturdevani.

On February 18, 1902, the plaintiff’s motion was deemed waived, and tbe defendants’ motion denied.