Guild v. Deniston

161 N.W. 357, 165 Wis. 123, 1917 Wisc. LEXIS 48

• Court: Wisconsin Supreme Court
• Decided: February 13, 1917
• Status: Published

Opinion

Siebecker, J.

It is held in this cftse:

(1) That the court properly permitted the plaintiff to file a reply to defendant’s counterclaim at the time the action was on trial. This action of the court was clearly within its power to disregard any defect in the proceeding which does not affect any substantial right of the adverse party.

(2) That the trial court properly interpreted the provision of the contract giving the plaintiff the option to cancel the contract of the parties and compel the defendant to refund the money he had received on the contract with interest. While the terms of this provision are not as clearly expressed as language might make them, yet they naturally convoy the meaning that any time before January 1, 1914, at the plaintiff’s option and within thirty days of written notification by plaintiff, defendant will refund the amount plaintiff had paid on the contract with six per cent, interest and surrender and cancel the contract. The evidence shows that plaintiff did give defendant written notification that he exercised his option to cancel the contract and demanded repayment of the moneys paid thereon with interest. We consider that this was in compliance with the terms of the contract. The acts of the parties harmonize with this' idea. Under these facts and circumstances the defendant was liable for the $300 he had received on the contract, and the court properly awarded judgment for the recovery thereof with interest.

By the Court. — The judgment appealed from is affirmed.