Hackbarth v. Wollner

WiNSLow, J. Whether the original contract had been merged in the deed, we shall not consider, because we are very well satisfied that this was a contract to convey a known farm, and that the mention of the number of acres was only for the purpose of description. The sale was a 478 sale of the “ homestead farm,” and not of a specified number of acres. The case of Docter v. Furch, 76 Wis. 153, is conclusive on this point, and nothing need be added to the discussion of the question contained in that case. As to the personal property, the allegations are entirely insufficient to make a good cause of action. The contract simply provides that the personal property named is to be conveyed to plaintiff, but no time of delivery is specified. The necessary inference is that it was to be left on the farm, or delivered when the plaintiff took possession. It does not appear from the complaint that plaintiff has ever taken possession of the farm, or demanded possession either of the farm or the personal property. We cannot assume either of these facts, and in the absence of either of them there does not appear to have been any breach of the contract. By the Court.— Order reversed, and action remanded with directions to sustain the demurrer to the complaint.