Hutchinson v. Holmes Sanitarium

66 N.W. 700, 93 Wis. 23, 1896 Wisc. LEXIS 6

• Court: Wisconsin Supreme Court
• Decided: March 27, 1896
• Status: Published

Opinion

Winslow, J.

We find it unnecessary to consider or decide the question as to the power of Wiltrout to make the original contract in question on behalf of the corporation. Whether he had power to bind the corporation by that contract without authority from the board of directors or not, it seems entirely certain to us that, conceding the contract to be valid and binding on the corporation, it was annulled and rescinded in toto by the parties through their correspondence in February and March, 1894. This correspondence is set forth quite fully in the statement of the case, and it will not be necessary to repeat it here. It is enough to say that after much correspondence Dr. Wiltrout wrote the plaintiffs on March 21st that “ As our former contract is practically am nulled, I make you the following proposition.” Then follows a clear and complete proposition needing no help nor aid from the former contract. To this letter and proposition the plaintiffs replied, making no objection to the statement that the former contract was annulled, and accepted the new proposition. "We can view this as nothing short of an abandonment and abrogation of the old contract and the substitution of another therefor. This new contract contained no provision for the payment of $1,000, or any sum, in case Wiltrout sold the sanitarium without the assistance of the plaintiffs, and hence there can be no recovery. The plaintiffs cannot recover the four per cent, because they did not produce a purchaser, and they cannot recover the $1,000 because the agreement to pay that sum had been abrogated by mutual consent.

By the Gowrt.— Judgment reversed, and action remanded with direction to enter judgment for the defendant dismissing the plaintiffs’ complaint.