Hunholz v. Helz

K/eewiN, J. The errors assigned are based mainly upon the sufficiency of the evidence to' support the findings. After a careful examination of the record we are convinced that the-findings are well supported by the evidence. It is argued by appellants that no proper tender of performance on the part of the plaintiff was shown; that he insisted upon conditions not covered by the contract; that there was a mistake in description of the property in the contract; that costs should not have been awarded against the defendants; and that the judgment is contrary to equity. An action for specific performance is in a measure addressed to the sound discretion of the court, and where there is no abuse of discretion this court will not disturb the judgment. There is nothing inequitable or unfair in the contract, and no reason appears in the record why it should not be specifically enforced. Pom. Eq. Jur. § 1402 Mulligan v. Albertz, 103 Wis. 140, 78 N. W. 1093; Willard v. Tayloe, 8 Wall. 557. The points made that plaintiff insisted upon terms different from the contract and the claim respecting tender of performance were properly disposed of by the court below upon the evidence. The disposition of the payment of taxes by the court in the findings set up in the-statement of facts was entirely proper and fair to defendants, and in harmony with the rule laid down by this court. Cunningham v. Brown, 44 Wis. 72; Peterson v. Chase, 115 Wis. 239, 91 N. W. 687; Wright v. Young, 6 Wis. 127. The findings of the court against the contention of appellants respecting the lot intended to be included in the contract cannot be-said to be against the clear preponderance of the evidence and therefore cannot be disturbed. Momsen v. Plankinton, 96 Wis. 166, 71 N. W. 98; Cunningham v. Brictson, 101 Wis. 378, 77 N. W. 740; Von Trolt v. Von Trott, 118 Wis. 29, 94 [225] N. W. 798; Chase v. Hinkley, 126 Wis. 75, 105 N. W. 230. No error was committed in awarding costs against the defendants. The case being in equity, and it appearing that the discretion vested in the court respecting costs in equity cases was not abused, the judgment in that- regard cannot be disturbed. Benson v. Cutler, 66 Wis. 305, 28 N. W. 134; Clinton v. Webster, 66 Wis. 322, 28 N. W. 349; Carrier v. Atwood, 63 Wis. 301, 24 N. W. 82; Nevil v. Clifford, 63 Wis. 435, 24 N. W. 65. We think the judgment below was right and must be affirmed. By the Court. — The judgment below is affirmed.