George v. Conhaim

Mitchell, J. There are two grounds, upon either of which, in our •opinion, the decision of the court below was right. 1. The memorandum of contract was void for indefiniteness and uncertainty as to its terms. The deed was to be delivered within 10 days after the furnishing of an abstract of title, upon receipt of cash payments, and the securities for the deferred payments. The memorandum nowhere states what these securities were to be,— whether merely the notes of the purchaser, or a mortgage, or, if the latter, whether on the property sold, or on some other property, real ■or personal. If it had provided that the deferred payments were to be secured by mortgage, we might be justified as assuming, as was done in Matteson v. Scofield, 27 Wis. 671, that this meant a mortgage on [340] the land sold. But in this case the contract is entirely silent as to the nature of the securities. Plaintiffs, however, contend that parol evidence would have been admissible to show what securities the parties intended. But the trouble is that this would not be evidence to' apply the terms used, or to identify the subject-matter of the contract, but to prove the terms of the sale. This cannot be done. The written memorandum must contain all the material terms of the contract. The plaintiffs did not and do not waive security for the deferred payments, but insisted on a mortgage on the land sold. Under these circumstances, a court would not enforce specific performance, for the reason that the contract is wholly indefinite as to its terms in. this particular. 2. According to plaintiffs’ own admission, they were not seized of the title to this land. Their allegation is that they were the equitable owners of it, but that one M. B. Pratt held the legal title. What-they tendered to defendant was a warranty deed from themselves, and another from Pratt to defendant. The fair construction of the complaint is that this deed from Pratt was unrecorded, and there is-no allegation that they tendered to defendant any money with which to pay for recording it. Now, the defendant was not required to accept any deed from Pratt, much less to pay for recording it. What-he contracted for was a conveyance from plaintiffs, and what he was-entitled to insist upon was a perfect title of record in the plaintiffs at the time of the delivery of their deed to him. This, according to their own admission, they did not have. Consequently, plaintiffs having failed to comply with the terms of their agreement, the defendant was justified in refusing to accept the deeds offered. This-being the case, of course, the plaintiffs could have no cause of action against defendant, either for specific performance or for damages. And, for the same reason, the defendant was entitled to recover back the money he Jbad paid. Order affirmed. SUPPLEMENTAL OPINION. Mitchell, J. Since the foregoing opinion was filed, our attention has been called to the fact that we were in error in supposing that. [341] the deed from Pratt ran to defendant as grantee. In fact, it ran to plaintiffs. This would not, however, affect the result, although it renders some things said in the opinion inapplicable to the facts, and hence obiter.