Brink v. Mitchell

Siebeokee, J. The court concluded that the option contract and the lease were substantially contemporaneous in time, related to the same subject matter, and aimed to' carry out the common purpose that defendants should lease tlio premises to the plaintiff upon th© terms specified for the period of one year, with the right of the plaintiff to purchase the premises upon the terms and conditions expressed in the written option. The facts and circumstances surrounding’ the making of these agreements and their provisions sustain the trial court’s conclusion that the lease and option were made pursuant to a common agreement. The lease contains an express agreement that the rent reserved shall be applied on the purchase price, if the plaintiff should elect to purchase the premises under the option. This is plainly indicative that the lease and the written option embrace different parts of the same agreement and pertain to the same subject matter, namely, plaintiff’s right to purchase and to occupy these premises for the period of one year. Plaintiff has occupied the premises pnder the lease and become liable for the rent reserved, and is liable therefor as rent, unless she has complied with the terms of the option and thereby secured the right to apply the amount thereof as part payment of the purchase price. The lease has been carried put between the parties to the extent of plaintiff having possession of the premises, and during the year she elected to apply the rent reserved as part payment of the purchase price of the premises under the option. These circumstances show ample consideration to sustain the lease and option, and we need not look for any other consideration to sustain the option. By the option contract it was agreed that plaintiff should have the right to purchase the premises upon payment of the price agreed upon, the taxes levied after the date of the contract, and the expenses incurred for sidewalk construction [421] during tbe year covered by tbe option. It is further stipulated that if plaintiff should choose to take the premises, pay defendants the agreed price, and pay “to the proper officers” all such taxes, then defendants were to convey the premises to her “by a good and sufficient quitclaim deed,” and in case of her default in any of these matters the option was to be void. The argument is made that the second clause referring to the payment of taxes levied after the date of the option “to the proper officers” evinces that the parties intended that actual payment “to the proper officers” should be a condition precedent, and that a failure so to pay them when due and payable should be considered a breach of the option and work a forfeiture of her rights under it. We find cogency and force in respondent’s reply that such an intent is negatived by the agreement that she might pay the consideration and such taxes at any time she might elect to purchase before the option expired. The conditions, of the right to purchase during the year fixed by the option are so clearly expressed that any inference to the contrary respecting the time and manner of payment of the tax, based.on the latter clause, must be deemed as negatived by the express agreements, and as showing that no such condition as appellants contend for was agreed upon by the parties. The point is made that respondent is not entitled to judgment because the pleadings and the proof fail to show what interest in the premises defendants agreed to convey under the option. The agreement is that defendants should convey the premises to plaintiff by a good and sufficient quitclaim deed upon her compliance with its terms. The agreement also recites that defendants have acquired the title to the premises by purchase on foreclosure sale. These -terms of the agreement call for a conveyance of the entire estate of the lands embraced therein. Arentsen v. Moreland, 122 Wis. 167, 175, 176, 99 N. W. 790. It is urged that the agreement to convey “by a good and [422] sufficient quitclaim deed” is in effect an agreement 'to convey -whatever interest defendants have in the premises, and that these words operate to restrict the other parts of the agreement respecting the conveyance of the entire estate. We find no such effect in this clause of the agreement. It prescribes by what form of conveyance transfer shall be made, and in no way restricts the previous terms calling for a conveyance of the entire estate. Since defendants have disabled themselves from complying with the option upon plaintiff’s election to purchase and upon a tender of performance of its terms, the court properly ascertained the value of the premises at the time conveyance was demanded.and awarded recovery for the amount by which such value exceeded the sum then due from plaintiff under the option agfeement. We find no- reversible error in the record. By the Court. — Judgment affirmed.