Hagerty v. White

Cassoday, J. The findings of fact seem to be well supported by the evidence. At the close of the testimony on the part of the defendants, the plaintiff attempted to show the condition of the livery stock when the defendants took possession, and'its condition at the time of the trial, but the court refused to allow him to do so, and error is assigned for such ruling. The proposed testimony, if admissible, should have been given as a part of the .plaintiff’s original case. Some such testimony was in fact given by the plaintiff before resting his case. To have allowed him to give in evidence the proposed testimony, would have been to allow the plaintiff to re-open his original case. This could not be done as a matter of strict legal right, after the defendants had rested. Trial courts, however, have a large discretion as to the order in which testimony should be admitted, especially in equity cases like this. Such exercise of discretion, in good faith, and in the absence'of any abuse of it, is not the subject of review. It follows that this appeal must be determined upon the facts as found. Manifestly, the trial court was. right in holding that the two written instruments between the same parties, made at the same time, in pursuance of the same agreement, for the same common purpose, and in relation to the same subject-matter, must, upon well-settled principles, be construed together as constituting one paper in law. Winner v. Hoyt, 66 Wis. 234; Herbst v. Lowe, 65 Wis. 320. The plaintiff is the father of the defendant Maggie. At the time of making the writings he lived alone in Green Bay, and she and her husband at Marinette. The plaintiff then had a livery-stable and certain other pieces of land in Green Bay, a part of which was subject to a mortgage of $4,500. He also had a livery stock, and was carrying on [324] tUe livery business at that place. He was old, and wanted to live with Maggie, and have her husband take sole control and management of the livery business. Maggie and her ■ husband only had about $1,000. The transaction was such that the plaintiff, by the papers mentioned, transferred and assigned to Maggie, absolutely, the undivided one-half of the livery stock, and an insurance certificate, and also conveyed to her by warranty deed with covenants of seizin, • quiet enjoyment, and against all incumbrances, except said mortgage, the undivided one-half of said lands, including said livery-stable, upon the express condition that Maggie, her heii’s, executors, administrators, and assigns, should, for and during the plaintiff’s natural life, provide and furnish him a good and comfortable home, food, and such other necessaries as he had been accustomed to, and as were suited to his age, station in life, and comfort; and in case of the failure to perform said conditions, the deed was to be null and void, and the premises thereby conveyed to revert back to the plaintiff; and on his death the deed was to become absolute. By the agreement the plaintiff wTas to have the right, during his life-time, to collect for his own use and purposes all rents to be derived from three of the pieces of land, the undivided one-half of which was so conveyed, but which three pieces the plaintiff thereby agreed to keep in repair and insured against fire, at his own expense. At the time of making the agreement, and as therein agreed, Maggie paid the plaintiff the $1,000, which he therein agreed to apply, and did apply, as a payment upon said mortgage. By the agreement Maggie was to carry on said livery business to the best advantage, and to the best of her ability, and out of the earnings thereof pay all expenses first, and then apply all gains towards the payment of said mortgage. By the writings the plaintiff, for himself and his assigns, agreed with Maggie and her assigns that her husband, Henry J. White, should have sole control and man [325] agement of the undivided one-half of the first part (the plaintiff) in the livery-stable business, from that day forward. It was further agreed therein between both parties that when said mortgage should be thus paid up, as indicated, then all gain thereafter from said livery business above expenses should be divided equally between both parties thereto. It is very plain that such transfer, assignment, and conveyance, so made to. Maggie, were in consideration of the money so paid by her, and agreements to be performed by' her — including the implied agreement to provide and furnish the plaintiff during his natural life with good and comfortable home, food, and other necessaries. We say implied agreement, because it stands as an “express condition” in the deed. The payment of the $1,000 left the defendants substantially without means to perform the agreements on their part, except as they were enabled to do so from the livery business and the income of the property received from the plaintiff. The continuance during the life of the plaintiff of such business and income was the only security the defendants had against the forfeiture for condition broken, provided for in the deed. If they fail to pay the mortgage when due, they are liable to lose a part of the land by foreclosure. If they fail to perform the condition in the deed, they are liable to lose all the land by forfeiture. The condition will continue during the life of the plaintiff, unless sooner terminated by forfeiture. By implication the livery business was to be carried on by the defendants, at least until the mortgage should be paid up from gains arising therefrom, over and above all expenses. It was only after such payment of the mortgage that such net gains were to be divided equally between the plaintiff and Maggie. Whether there will ever be any such gains, time only will demonstrate. The right to such division of [326] such net gains is said to constitute a partnership which the plaintiff had the right to dissolve at any time. But whether the agreement constitutes a partnership or not, it is manifest to us that the defendants, under the agreement, have the exclusive right to the sole control and management of the livery business, so long as there is no forfeiture, nor any substantial intervening equity. This action does not directly seek to enforce a forfeiture-by reason of any breach of condition named in the deed. Besides, it is well settled that equity will not entertain an action to declare a forfeiture for condition broken, Mills v. Evansville Seminary, 47 Wis. 354. In such case a technical bieach of contract affords no ground for equitable relief, because equity deals only with substantial rights, and only interferes when such rights are endangered. Here, according to the facts found, the defendants acted in good faith, and substantially performed their contract. This being so, the plaintiff, at most, was only entitled to an accounting, and that he got. To allow the plaintiff to go further, and in effect rescind the agreement, and thus force the defendants into a position where a forfeiture would be inevitable, would, as it seems to us, be inequitable, if not an abuse of the powers of the court. By the Court — The judgment of the circuit court is affirmed.