Heidtke v. Krause

72 N.W. 351, 97 Wis. 118, 1897 Wisc. LEXIS 17

• Court: Wisconsin Supreme Court
• Decided: September 28, 1897
• Status: Published

Opinion

Newscast, J.

The error claimed is that the judgment fails; to provide for the recovery of the penalty of the bond. It is claimed that the penalty of the bond should be treated as purchase money agreed to be paid for the premises. But, such a contention would be contrary to the bond itself,, as well as contrary to the evident intention of the parties. The elder Krause intended to give this farm to his son, reserving only sufficient for the support of himself and wife,, and to provide for burial; and so it is provided that, when, such provisions as are for their maintenance are complied with, the bond is satisfied and of no further force. The-penalty of the bond is of no significance as indicating an intention that the obligor should pay for the farm. The penalty of the bond is a mere nominal sum, supposed to be more than sufficient to cover all possible damages from nonperformance of its conditions. The former practice on breach of the condition of a bond was to render judgment for the amount of the penalty, and to issue execution for the amount only which was due for the breach of the condition. K. S. 1858, ch. 140, secs. 19, 20. This was changed by sec. 2890, E. S. 1878. The proper practice now is to render judgment for the amount which is due for the breach of the condition of the bond. The judgment is manifestly right.

By the Court.— The judgment of the circuit court is affirmed.