Harney v. Burhans

64 N.W. 1031, 91 Wis. 348, 1895 Wisc. LEXIS 71

• Court: Wisconsin Supreme Court
• Decided: November 8, 1895
• Status: Published

Opinion

■Maeshall, J.

It is perfectly plain that the trial court did not consider the memorandum sufficient to satisfy the statute of frauds, though he did not so distinctly find, but that is clearly the effect of his findings, with which we concur. Obviously, the written memorandum was'insufficient in several material particulars. It is not necessary that the memorandum should contain all the parts of the contract, or be formal. No'matter how bunglingly it may be drawn, it will satisfy the statute of frauds if it contains all the-essential terms of the contract, either by its terms or by reference to other writings, so that it will not be necessary to resort to parol evidence to explain it. It must be definite 'in respect to the' intention of .the parties, who they are, their relation one to the- other, who is the seller, who' the buyer, the property, the price, and the terms of payment.- This is too well established to need authorities in support of it-; and, tested by the rule thus stated, the imperfections of the memorandum are quite apparent. '

We are unable to concur in the conclusion of the' learned trial judge that the facts disclosed by the evidence, and mentioned in the findings, are sufficient to take the case out of the statute. It was early decided by this court {Smith v. Finch, 8 Wis. 245) that the. full payment of the purchase money is not sufficient to take a case out of the statute, so that specific performance will be decreed, unless accompanied by actual possession or some act whereby the vendee has received an injury for which a cou/rt of law cannot gi/oe a complete remedy. Such is the effect of the decision, and the same has been repeatedly followed. Horn v. Ludington, 32 Wis. 13; Ingles v. Patterson, 36 Wis. 373; Thrall v. Thrall, 60 Wis. 503; Popp v. Swanke, 68 Wis. 364.

If appellants had brought an action for specific performance, obviously they would have been unsuccessful, upon the ground that the contract was, in its inception, within the statute of frauds, and that the part performance shown was insufficient to relieve it of that difficulty, so as to enable a court of equity to enforce it.

We are also unable to agree with the learned judge in his conclusion that the memorandum of the contract between the parties created the relation of principal and agent. In our view, it is too clear for argument thal the contract was for the sale of the land or of some interest therein, or the creation of some estate or interest in land. If the latter, it is void because such interest was not created by deed or conveyance in writing subscribed by the party creating the same or by his lawful agent thereunto authorized by writing (R. S. sec. 2302);.if the former, because the memorandum is insufficient, under R. S. sec. 2304. The payment of $2,200 to the defendant, to be retained to apply on the interest in the land sold or created, is inconsistent, with, it appears to us, any reasonable theory that the parties contemplated by the contract the mere creation of the relation of principal and agent.

The contract being void, the plaintiffs are entitled to recover back the $2,200 paid, with interest thereon from the time of the demand for its return, which, according to the evidence, was October 6, 1893.

By the Cotvrt.— The judgment of the superior court is reversed, and the cause remanded with directions to render judgment in favor of the plaintiffs in accordance with this opinion.