Phillips v. Carver

75 N.W. 432, 99 Wis. 561, 1898 Wisc. LEXIS 102

Opinion

Pinitet, J.

The objection of the defendants to any evidence under the complaint was rightly overruled. Upon a demurrer ore tenus to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, the complaint will be construed liberally, and with a view to substantial justice; and all reasonable presumptions will be allowed in its favor. Hagenah v. Geffert, 73 Wis. 636; Teetshorn v. Hull, 30 Wis. 162. Extended discussion is not required to show that the complaint states substantially a cause of action for specific performance of the contract of November 23, 1893, and recovery of the lands described therein. The objection that two causes of action had been improperly united could not be raised by demurrer ore tenus. The defendants, having answered the complaint, had waived that objection by failure to take it by answer or fornaal demurrer. “ If no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the -court, and the objection that tbe complaint does not state facts sufficient to constitute a cause of action.” R. S. 1878, sec. 2654

Whether the plaintiff should have been required to elect under which claim or cause of action he would proceed, was a matter within the discretion of the court, and there is nothing to show any abuse of such discretion. This ruling cannot be assigned as error.

W. S. Warner was the owner of the land, and both parties claimed by title derived under and through him. He executed to Holmes the contract, which the latter transferred to the plaintiff, Phillips, November 12, 1895. The contention that Phillips had forfeited all rights he ever had under the contract seems to be satisfactorily answered by the deed from W. S. Warner and .wife to the defendants, -dated October 9, 1895, put in evidence, which, as to Warner and the defendants claiming title under him, was clearly a waiver of the objection of lapse of time in the performance of the contract. The testimony of Mrs. Warner was that Holmes paid $15.05, April 20, 1895, as interest on the contract, and which Warner received. She testified, also, that the understanding then was that Holmes should pay, as soon as possible, the principal,— “there was no time given him whatever;” that Warner said “he must pay the money as soon as he possibly could; ” that she subsequently wrote to Holmes, for Warner, to the effect that he must pay the principal, or he would consider the contract void, and this was shortly before the defendant Carver came to buy the land. It.appears by this testimony and the deed from Warner and wife, under and through which the defendants claim, that Warner had waived any forfeiture that could be claimed by reason of delay or failure to make prompt payment, and Holmes was still being indulged by Warner as to further time. It appears that Phillips called on Warner the 12th of November, and told him that he had bought the Holmes contract, and asked him how much he owed him on it. Mr. Warner said he had nothing more to do with-it; he had sold it to Carver. It appears by the testimony of the defendant Hose Carver that December 1, 1895, Phillips came to their house to see about the land that Holmes had a contract on; that he had bought the contract; that he said there was some money due, and he would send the money in two or three days; that she next saw him January 18, 1896, when he said “he had brought us up some money to pay on contract, and Carver told him he was altogether too late, as we considered the payment past due.” The testimony shows some further ineffectual negotiations on the part of the plaintiff to induce the defendants to take the money, and that the defendants said they were under no obligation to take any money on the contract. However, the plaintiff counted out to them $117; and, upon their insisting that it was too late, he picked up the money, and they talked about a compromise. There was evidence tending to.show that the plaintiff, Phillips, informed the defendant Carver, November 14,1895, that he was ready to pay all sums due on the contract, and that the defendants on the 25th of November gave notice to Holmes that the}?- had purchased from Warner the premises in question, and held his warranty deed therefor, “subject to contract of sale therefor to you dated November 23,1893,” and stating the time within which the several payments of principal and interest were to fall due, and demanding that he should pay said sum of $100, with interest, on said contract, at once, or they would declare said contract utterly void, and all payments thereon forfeited. It thus appears that at this date the defendants, as assignees of the contract, were insisting on its validity and performance on the part of the plaintiff. Their interest in the land was taken expressly subject to the provisions of the written .contract to Holmes, which had been transferred, and was then held by the plaintiff, Phillips; and these provisions, and such de mand of payment, in connection with other facts and circumstances in evidence, amounted to a valid and sufficient waiver by both Warner and the defendants of the default of payment of principal and interest that had then occurred.

The stipulation in the contract that if Holmes, the vendee, should fail to make any of the payments of purchase money at the time and in the manner specified, in such case the agreement should be henceforth utterly void, and all payments thereon forfeited, subject to be revived and renewed by the act of the vendor, or the mutual agreement of both parties, had the effect to _ render payment of the purchase money at the time and in the manner specified material' to the contract. But whenever time is made essential, either by the nature of the subject matter and object of the agreement, or by express stipulation, or by a subsequent notice given by one of the parties to the other, the party in whose favor this quality exists (that is, the one who is entitled to insist upon a punctual performance by the other, or else that the agreement be ended) may waive his right, and the benefit of any objection which he might raise to a performance after the prescribed time, either expressly, or by his conduct; and his conduct will operate as a waiver when it is consistent only with a purpose on his part to regard the contract as still subsisting, and not ended by the other party’s default. Accordingly, if either the vendor or the vendee has improperly and unreasonably delayed in complying with the terms of the agreement on his side, the other party may, by notice, fix upon and assign a reasonable time for completing the contract, and may call upon the defaulting party to do the acts to be done by him, or any particular act, within this period. The time thus allotted then becomes essential, and, if the party in default fails to perform beforfe it has elapsed, the court will not aid him in enforcing the contract, but will leave him to his legal remedy. The notice cannot be an arbitrary and sudden terrni- Ration of the transaction. It cannot put an immediate end to a pending dispute or negotiation as to the title. It must allow a reasonable length of time for the other party to perform. And, if it fails in any of these respects, it may be disregarded, and will produce no effect upon the equitable, remedial rights of the party to whom, it is given. The nature and object of the contract, the circumstances .of the case, and the previous conduct of the parties, are important, and, indeed, controlling, elements in determining the reasonableness of the notice. The notice, also, to be effectual in making the time allotted an essential element of the performance, must be express, clear, distinct, and unequivocal. After time has been thus made an essential element of the contract, by a reasonable notice given during the negotiation concerning its performance, the notice and its effect may be waived by the conduct of the party giving it; and if the time is once allowed to pass, and the parties still go on negotiating for the completion of the purchase, this conduct amounts to a waiver, and time is then no longer essential. Pomeroy, Contracts, §§ 394-397.

The defendants acquired their rights in the premises by the deed from Warner and wife, which stated that it was made subject to a written contract for the sale of said land ■to Levi Holmes November 23, 1893, with which contract parties of the second part agreed to comply, and took said deed and conveyance with full notice and knowledge that said Holmes and the plaintiff were the owners of said premises, and had entered into possession of the same. It further appears that the sum of $15.05 was paid by Holmes on account of said contract, and received by Warner, April 20, 1895, and duly indorsed upon the said land contract, with the understanding that the $50 principal would be paid at a future date, with seven per cent, interest; that on November 23,1895, the sum of $100, principal, and $15.05, interest, •became due, which amount was legally tendered to said Warner and to said defendants as aforesaid. They stood'in. the place of Warner, and were bound and affected by all ■equities existing against him in respect to the premises. The provisions of the written contract for the sale of the land to Holmes, dated November 23, 1893, recited and referred to in said deed of October 9, 1895, amounted to a legal waiver by Warner, who executed the deed, and by the defendants, who accepted it, of all defaults of payment of principal and interest that had matured and were then past due on the ■contract; and it seems but just that their demand of the payment of the purchase money secured by said contract should have the like effect. These acts of waiver occurred prior to the time the defendants acquired their claim of title. It does not appear that Warner, or. the defendants as his assignees, did anything after they had acquired their interest to fix the time of payment, or make it material or essential to the contract. It seems, therefore, that the plaintiff had not forfeited his equitable rights in the premises at the time he tendered to the defendants payment of the money due on the contract in December, 1895, and demanded of the defendants a conveyance of the premises.

The imperfect and anomalous condition of the pleadings, and the peculiar character of the issues developed, have resulted from the irregular course of pleading to which the parties have resorted. The matters set up in the complaint and answer are clearly material and important to a determination of the rights of the parties in and to the premises in dispute. They are in part of a legal, and in part of an equitable, nature; and, although not brought before the court by any regular or permissible course, evidence was directed to, and proper findings have been made on, all these subjects, so that no difficulty existed, in view of the findings of the trial court, of stating and adjudging the sums to be allowed or adjudged to each of the parties, and embracing •them in a final judgment. It would doubtless have been more in conformity with correct practice bad the court, on motion before trial, required the pleadings to be reformed so as to have produced issues more in accordance with correct practice in actions of ejectment, in which there are-legal and equitable controversies to be determined, but no-attempt in that direction seems to have been made. It does not now appear necessary or essential to the ends of justice to set aside these findings, and put the parties to the expense and delay of another trial, in order to vindicate a mere matter of method or form of procedure or trial, when it is evident that the parties have had a fair investigation and determination of the matters in controversy. The court had jurisdiction of the parties, 'and authority to hear and determine the entire controversy. In fact, it would seem that tire parties, respectively, have Avaived all right to object to the method of procedure adopted, and have substantially consented to it.

. We perceive no reason why, in the condition of the issues at the time of the trial, evidence might not have been properly received to show what sum remained due and unpaid from the plaintiff to the defendants for unpaid purchase money, and interest thereon, or what sum should be allowed to them for improvements made on the premises while they held and occupied the same, excluding the plaintiff from the possession thereof, or what sum should be allowed to the plaintiff by way of damages or for Avaste, as against the defendants. Evidence has been directed to, and proper findings have been made on, these and all subjects of controversy contained in the record, so that no practical difficulty existed, in view of the findings of the trial court, of stating and adjudging the sum which should be alloAved or adjudged to each of the parties, and embraced in the final judgment. The situation was plain, and, we must assume, well understood by both parties, when the defendants’ demurrer ore terms was overruled. They took no steps to extricate the case from the situation in which it had been placed by their failure to pursue the course of practice the law had provided, and we see no substantial objection to the result arrived at.

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