Opinion
October 7, 1952 —
November 5, 1952.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit judge. Affirmed.
The cause was submitted for the appellants on the brief of Donald C. Jacobson, attorney, and Joseph F. Schoendorf of counsel, both of Milwaukee, and for the respondent on the brief of Rieser, Mathys, McNamara Stafford of Madison.
Action commenced on April 8, 1949, by Angie K. Taylor against Louis Bricker and Ruth Bricker to recover damages for breach of contract. The terms of the contract are as follows:
"This memorandum of agreement by and between Angie K. Taylor, party of the first part, and Louis Bricker and Ruth Bricker, husband and wife, parties of the second part, made this 24th day of January, 1949.
"It is hereby agreed by the parties hereto as follows:
"1. The parties hereto agree to exchange their present homes, located respectively at 2214 Hollister avenue, Madison, Wisconsin, and 1800 Waunona way, town of Blooming Grove, said transfer to be made by the exchange of warranty deeds on or about April 1, 1949.
"2. Real-estate taxes and insurance premiums on the said properties shall be prorated as of the date of transfer.
"3. The parties of the second part agree to place a mortgage on the property at 2214 Hollister avenue in the amount of twelve thousand dollars and to satisfy the existing mortgage on the property at 1800 Waunona way in the amount of approximately six thousand dollars out of the proceeds of the said mortgage on the Hollister avenue property, and to place the balance of approximately six thousand dollars in escrow with Eldon B. Russell Associates, to be held for the purposes hereinafter set forth. It is agreed that when the Waunona way property is sold, and in any event by November 1, 1949, the party of the first part shall be paid the sum of twenty-six thousand dollars out of the proceeds of such sale, and if such sale shall not be for at least twenty-six thousand dollars the balance shall be paid to the said party of the first part out of the fund held in escrow by said Eldon B. Russell Associates, and if such fund shall not be sufficient to make the total payment to the party of the first part of twenty-six thousand dollars, the balance shall be paid by the parties of the second part. If the Waunona way property shall be sold for more than twenty-six thousand dollars, the excess over said twenty-six thousand dollars, after adjustments, shall be paid to the parties of the second part and the fund held in escrow shall also be paid to the parties of the second part. In the event that only a part of the fund held in escrow shall be paid to the party of the first part to make the total payment of twenty-six thousand dollars then the balance of said fund shall be paid to the parties of the second part.
"4. The parties of the second part agree to remain in physical occupancy of the Waunona way property until such time as it is sold, and to maintain it and to pay to the party of the first part rent in the amount of one hundred eighteen dollars a month.
"The party of the first part agrees to insure the Waunona way property in the amount of twenty thousand dollars fire and extended coverage. . . ."
On or about March 1, 1949, defendants notified plaintiff that they elected to rescind the contract and did not intend to perform. On April 1, 1949, plaintiff tendered to defendants a deed to her Hollister avenue property upon condition that defendants would tender to her a deed to their property on Waunona way. Defendants refused to accept the tender. Judgment for $5,000, the difference between $26,000 and the sale value of plaintiff's property, was demanded.
A demurrer to the complaint was overruled. The defendants answered and there was a trial to the court which resulted in judgment entered on December 14, 1951, in favor of plaintiff and against defendants for the sum of $3,220.20. Defendants appeal.
Defendants contend that the memorandum is too uncertain and indefinite to constitute a binding contract and that it does not meet the requirements of the statute of frauds, secs. 240.06 and 240.08.
With some difficulty we believe we have been able to read out of the paper an expression of the intent of the parties and its purpose. That difficulty appears does not relieve us of the duty of determining whether it constitutes a contract sufficiently definite and unambiguous to be enforceable.
"In interpreting doubtful agreements a court will, if possible, attach a sufficiently definite meaning to a bargain of parties who evidently intended to enter into a binding contract. . . ." 1 Williston, Contracts (rev. ed.), p. 100, sec. 37.
It does not appear to us that the memorandum is indefinite. We are able to read out of its terms the subject of the agreement, the object to be accomplished, and the requirements as to performance.
Although the contract recites that the parties agree to exchange their properties it appears from its other provisions that it was not contemplated that plaintiff desired actual ownership and possession of the defendants' property. It appears, rather, that it was her desire to sell her property for $26,000 cash and that the deal should be consummated by November 1, 1949, and that the provisions respecting the sale of the Bricker property were included in the contract to enable defendants to raise sufficient funds to buy plaintiff's property, and to give them time therefor. It was the purpose and the intent of the parties that plaintiff should have title to defendants' property pending the latters' effort to acquire the money necessary to pay for the plaintiff's property as security for the undertaking of the defendants to pay. That the parties recognized that under their arrangement no value could be placed upon the defendants' property is indicated by the fact that it is provided that the defendants would borrow $12,000 on the plaintiff's property when they acquired title, out of which they would use $6,000 to pay off an existing mortgage on the plaintiff's property and place the other $6,000 in escrow to be available to make up any difference which might result from the sale of the defendants' property for less than $26,000, and by the further provision that if the $6,000 to be held in escrow should not be adequate to provide sufficient funds for full payment of the $26,000 the defendants should be personally liable for such difference. In other words, and stated quite generally, it seems to have been the plan that the defendants would buy the plaintiff's property for $26,000 and pay toward said sum any amount which they might be able to realize out of the sale of their property.
Defendants contend that the contract is indefinite in that (a) it is not stated who is to sell the defendants' property; (b) there is no provision as to the terms upon which defendants' property is to be sold; (c) there is no provision concerning the disposition of the funds to be held in escrow in the event that the defendants' property is not sold prior to November 1, 1949; (d) there is no provision as to the rights of the parties in the event that the defendants' property is not sold prior to November 1, 1949; (e) there is no provision as to the terms of the mortgage to be placed upon the plaintiff's property; (f) there is no provision as to who is to pay the taxes on the respective properties pending sale of the defendants' property; (g) there is no provision as to who is to occupy the plaintiff's property pending the sale of the defendants' property or who is to receive the rentals and profits of said property during that period; (h) the contract refers to payment "after adjustments" but does not state what shall be considered or included in the adjustments. The objections will be treated in the order above named.
(a) Since the defendants are to provide the purchase price of plaintiff's property it is reasonable to assume that it was for them to sell theirs. We so construe the contract.
(b) The terms of the sale of defendants' property are no concern of the plaintiff. She appears to be interested only in receiving $26,000 for her property. The terms of sale are a matter for determination by defendants without consultation with plaintiff.
(c) If defendants should fail to sell their property by November 1, 1949, or otherwise fail to acquire the purchase price of plaintiff's property, there would be a breach of contract on their part, and if it were then necessary to determine the interest of either party in the escrow such determination could readily be made in appropriate proceedings.
(d) What is said under the heading (c) is also applicable here.
(e) What is said under the heading (b) is applicable here.
(f) So far as appears from the record no taxes would become due and payable in the interval between the date of the contract and November 1, 1949.
(g) The agreement contains no provision as to the occupancy of plaintiff's property pending consummation of the deal; nothing in the agreement restricts defendants, their right to its use, or rentals which might be paid for its occupancy.
(h) It is provided that plaintiff is to receive $26,000 for her property. It is to be observed that the provision here referred to is that if defendants' property be sold for more than that amount the excess shall be paid to defendants. The phrase "after adjustments" must be construed to mean that out of such excess there should first be deducted whatever defendants might be required to pay in the way of commissions, etc., in connection with the sale of their property.
We do not find that any of the provisions of the contract are indefinite or uncertain.
The contention of defendants that the contract does not meet the requirements of the statute of frauds is based upon their conclusion that it does not state the price to be paid by defendants and the terms of payment. The price to be paid is definitely fixed at $26,000, all of it to be paid by November 1, 1949, whether acquired out of the sale of defendants' property or otherwise. The requirements of the statutes are met.
By the Court. — Judgment affirmed.