Katzer v. Schuenke

Wisconsin Supreme Court

Katzer v. Schuenke

177 N.W. 855, 171 Wis. 605, 1920 Wisc. LEXIS 147

DecidedJune 1, 1920

StatusPublished

This text of 177 N.W. 855 (Katzer v. Schuenke) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Katzer v. Schuenke, 177 N.W. 855, 171 Wis. 605, 1920 Wisc. LEXIS 147 (Wis. 1920).

Pincite

Opinion

Vinje, J.

The complaint alleges that a mortgage was to be given to secure or pay for the balance of the purchase price. The proof is undisputed that no promise to execute and deliver a mortgage to secure the balance of the purchase price was ever made. When Herman Schuenke bought the saloon he expressed an intention to execute a mortgage upon his homestead for either $1,000 or $1,500 to raise money to pay for the saloon and to supply funds for carrying it on. As a matter of fact he did execute a mortgage., joined in by the defendant, for $1,500, but the name of the mortgagee was left blank, and it was the intention to sell the mortgage and thus secure the money to meet the final payment on the saloon. But the mortgage was never1 sold. The plaintiff himself testifies that the talk was that the mortgage was to be sold and he was to be paid out of the proceeds. This is the undisputed testimony of defendant, the scrivener, Grootemaat, and of his son. The evidence therefore presents a case where a purchaser expresses the intention to raise money to meet a future payment by selling a mortgage on his property. The expres[608]*608sion of such intention does not constitute a contract that can be specifically performed. It is not a contract at all, but a mere statement as to how he expects to get the money -to make the payment. A default in thus securing the money cannot constitute a cause of action for specific performance. Even if regarded as a contract the court could not in this case grant specific performance, because the proof is barren as to who should be the mortgagee; for what sum the mortgage should be made; for how long it should run; and how it was to be paid, whether in one or several instalments. For these reasons the court properly dismissed the action.

By the Court. — Judgment affirmed.

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Vinje, J.

The complaint alleges that a mortgage was to be given to secure or pay for the balance of the purchase price. The proof is undisputed that no promise to execute and deliver a mortgage to secure the balance of the purchase price was ever made. When Herman Schuenke bought the saloon he expressed an intention to execute a mortgage upon his homestead for either $1,000 or $1,500 to raise money to pay for the saloon and to supply funds for carrying it on. As a matter of fact he did execute a mortgage., joined in by the defendant, for $1,500, but the name of the mortgagee was left blank, and it was the intention to sell the mortgage and thus secure the money to meet the final payment on the saloon. But the mortgage was never1 sold. The plaintiff himself testifies that the talk was that the mortgage was to be sold and he was to be paid out of the proceeds. This is the undisputed testimony of defendant, the scrivener, Grootemaat, and of his son. The evidence therefore presents a case where a purchaser expresses the intention to raise money to meet a future payment by selling a mortgage on his property. The expres[608]*608sion of such intention does not constitute a contract that can be specifically performed. It is not a contract at all, but a mere statement as to how he expects to get the money -to make the payment. A default in thus securing the money cannot constitute a cause of action for specific performance. Even if regarded as a contract the court could not in this case grant specific performance, because the proof is barren as to who should be the mortgagee; for what sum the mortgage should be made; for how long it should run; and how it was to be paid, whether in one or several instalments. For these reasons the court properly dismissed the action.

By the Court. — Judgment affirmed.

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Bluebook (online)

177 N.W. 855, 171 Wis. 605, 1920 Wisc. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/katzer-v-schuenke-wis-1920.