Mootz v. Petraschefski

EjgewiN, J. This action was brought upon the theory that in case the parties failed to agree the plaintiffs might pay $1,000 and be released from all obligations under the contract, except the payment to Otilia Petraschefski of $450, the $450 provided for Mrs. Langhoff having been paid by plaintiffs before the action was commenced. The contention of the parties involves the construction of the agreement set up in the statement of facts. The court found failure to agree, and also that prior to the commencement of the action and the tender of the $1,000 the plaintiffs at various times violated the obligations of the contract by failing to furnish nursing and care and otherwise. These findings, we think, are supported by the evidence. The question therefore arises whether the breach was a breach of a condition subsequent which entitles the defendants to rescind and re-enter for condition broken and thereby become repossessed of their former estate, under the rule of Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; Wanner v. Wanner, 115 Wis. 190, 91 N. W. 671; Krause v. Krause, 125 Wis. 337, 104 N. W. 76; Gall v. [323] Gall, 126 Wis. 390, 105 N. W. 953. It is the opinion of Justices Timlin, BaeNbs, and tbe writer that tbe doctrine of the foregoing cases does not apply to the instant case, but that any failure to agree, whether defendants remained under the plaintiffs’ roof or not, entitled plaintiffs to pay $1,000 and be released from all further obligations to the defendants. The majority of the court, however, think otherwise. The question turns upon the intention of the parties as gathered from the contract. What the intention was depends upon the construction of the contract and whether it is capable of an interpretation which will bring the case within the rule of the cases heretofore cited. The contract provides that the defendants shall have the use of three rooms in the house with plaintiffs upon the farm, but, in case they should desire to live with one of their other children, in such event the articles to be delivered under the contract were to be delivered at the abode of the defendants, which should not be more than twenty miles from the farm, and, “should the parties concerned not agree, then the parties of the second part shall pay the parties of the first part one thousand dollars and be released from all other obligations.” It is considered by the court that, in view of the close connection between the provision to pay $1,000 and the language respecting failure to agree, the idea of payment is coupled with the failure to agree after removal from the farm and new conditions arising after the defendants had gone to live with other children, and that the right to pay and be released should arise only under such circumstances. This appears to the court, under all the provisions of the contract and circumstances surrounding the parties at the time of its execution, to be a more reasonable interpretation than that it was intended that while all the parties were living together under the same roof, and no decision on the part of the defendants to live elsewhere, the plaintiffs, in case of disagreement, could tender $1,000 and send the defendants from under their roof. The court [324] therefore is of the opinion that the parties to the contract intended that the $1,000 was to be paid in case disagreement occurred after defendants had gone to live .elsewhere, and, they not haring done so, the right to pay the money and be released never arose. Besides, the contract does not provide that the money may be paid and plaintiffs released for breach on their part, but only in case of failure to agree. The plaintiffs having breached the agreement before the commencement of the action, the defendants’ right to rescission was complete, and the defendants were entitled to enforce it under their counterclaim. Glocke v. Glocke, 113 Wis. 308, 89 N. W. 118; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 611; Gall v. Gall, 126 Wis. 390, 105 N. W. 953. It is further contended that it was error to find the value of the timber cut $200, the value of the house built by 'plaintiffs $1,150, and in requiring the defendants to pay plaintiffs only $950. It also appears from the evidence that the plaintiffs made valuable improvements in addition to building the house, principally by way of fences, for which no allowance was made. It also appears that, in order to determine the rights of all parties, Otilia Petraschefski, daughter of defendants, should have been made a party, since the contract provided that she be paid $450 upon arriving at the age of eighteen years. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440. It is quite clear that the plaintiffs should have been allowed more than $950. The clear preponderance of the evidence shows that the reasonable cost of the house was more than $1,150; but it would be difficult if not impossible, from the condition of the evidence, to arrive at the reasonable cost, and there is no evidence from which the cost of the fences could be determined. So, because of the condition of the record, this court cannot finally dispose of the case. In order to do so, Otilia, daughter of defendants, must be made a party and permitted to defend, so that she may be bound by the judgment, and further testimony taken upon [325] tbe accounting, to the end that it may be definitely settled as to the amount which should be charged to plaintiffs for timber cut upon the premises, and the reasonable cost of the house built by plaintiffs on the premises as well as other improvements ascertained, and the amount to be paid by defendants to plaintiffs determined. The improvements having been made by consent of both parties to the contract, in arriving at the amount to be allowed to plaintiffs for such improvements the ordinary rule, does not apply, but the reasonable value of the improvements, not exceeding the actual cost, should be ascertained and allowed. By the Court. — The judgment of the court below is reversed, and the action remanded for further proceedings in accordance with this opinion.