Van Doren v. Roepke

BardeeN, J. The only question argued at the bar is whether the contract set out in the complaint is sufficient under sec. 2304, Stats. 1898. That section provides that every contract for the sale of lands or any interest in lands [537] shall be void “ unless the contract or some note or memorandum thei’eof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.” This section has been before the court in many cases in which the requisites of the “ note or memorandum ” of the contract have been discussed. One of the latest expressions of this court on that question may be found in Harney v. Burhans, 91 Wis. 348, where it is said: “It is not necessary that the memorandum should contain all the parts of the contract, •or be formal. No matter how bunglingly it may be drawn, it will satisfy the statute of frauds if it contains all the essential terms of the contract, either by its terms or by reference to other writings, so that it will not be necessary to resort to parol evidence to explain it. It must be definite in respect to the intention of the parties, who they are, their relation one to another, who is the seller, who the buyer, the property, the price, and the terms of payment.” The respondents admit that all of these requirements have been met in the contract in suit, except that there are no explicit words expressing the agreement on their part to convey, or of the other parties to purchase. To sustain this contention they appeal to that portion of the contract which says: “The above agreement is made in consideration of the purchase of the aforesaid lots 1 and 2, block 10, by the parties of the second part for the sum of $3,000.” A primary rule in the construction of a contract is that it must be construed as a whole, and not in fragments. Hosmer v. McDonald, 80 Wis. 54. Hence the attempt to test the contract by reference to separate or detached portions must fail. Neither is it necessary that the memorandum should contain .apt and definite words expressing the agreement to convey. It is sufficient if, from a consideration of the whole contract, it can be gathered that it is the intention of one party to convey and of the other to purchase; the other conditions [538] above mentioned being present. Thus, in Schweitzer v. Connor, 51 Wis. 177, the contract recited the receipt of a small payment of money, and then said: “ This amount is paid to-secure that portion ” of certain described land at a stated price per acre, etc. The language quoted was all that the contract contained with reference to the undertaking of the party selling, and the court held that it contained all the-elements of a complete contract, and parol evidence was inadmissible to show that the seller reserved title to the timber-on the land. The purpose of the statute was to require all contracts for the sale of lands, or of an interest in lands, to be evidenced by some note or memorandum in writing, so as to preclude the necessity of a resort to parol evidence. When such note or memorandum contains the requisites hereinbefore noted, no matter how bunglingly it may have been drawn, the court is bound to consider it the contract of the parties, and enforce it accordingly. Reading this contract as a whole, we do not very well see how any one can mistake the intention of the parties. The-obligations of the parties were mutual. In consideration of the purchase of the real estate, which is sufficiently described, by the plaintiffs, the defendants also agree to sell the personal property mentioned. The clear implication-from the language used is that the defendants agree to sell the real estate for $3,000, and, to make it more certain, they agree specifically to transfer the insurance on the building. It requires no resort to parol evidence to ascertain the terms of the contract. They are plain, distinct, and definite, as to parties, property, price, and terms. The fair implication from the language used is that the defendants have bound themselves to convey, and by acceptance the plaintiffs have bound themselves to purchase. The mutuality of the contract being determined, nothing remains for the courts to do, when appealed to, except to enforce it, unless some cir539 cumstauces are shown, which indicate that its enforcement would be inequitable. By the Court.— The order appealed from is reversed, and the cause is'remanded with directions to overrule the demurrer and for further proceedings according to law. Oassoday, O. J., took no part.