Schulze v. Lang

Baestes, J. The Lang deed did not convey his entire farm, and the land involved in this action was part and parcel of such farm. These facts are shown by the undisputed evidence and the court so finds. The' appellant contends that the written contract obligated Lang to convey his entire farm, the language relied on being the following: “The party of the first part [Acmgr] hereby agrees to sell and give a warranty deed with abstract showing good merchantable [title] of his farm near Wilson, 200 acres more or less, St. Oroix county, Wisconsin, which the second party [the plaintiff] and son have visited and inspected.” The appellant further contends that, while parol evidence was admissible to identify the farm, it was not competent to show an oral arrangement between the parties antedating the writing, by the terms of which it was agreed that about forty acres should be excepted and reserved by Lang out of the farm. Such parol evidence was received and the court found that the parol agreement was made. The finding is amply sustained by the testimony if the evidence was competent. The court also found that the plaintiff accepted the deed given her as a compliance with the contract. The respondents contend that the written contract was sufficiently ambiguous to admit of parol evidence to identify the farm covered by the contract and also to show that the agreement was that only a part of the farm should be conveyed, and [484] also that there was an acceptance of the deed tendered as a satisfaction of the contract. In view of the conclusion reached on the second point it is unnecessary to determine the first one. The plaintiff visited and inspected the farm about February 1st. Between that time and February 5th her husband and Lang staked off the part of the farm which plaintiff was to purchase and lying to the west of the west boundary line of the northeast quarter of the southwest quarter of section 35. The lands involved in this action lie to the west of said boundary line. The contract was made on February 5th. The deed was made four days later, and on February 12th it was deposited in escrow with the Bank of Reedsburg, Avhere it remained until March lYth. During this time the plaintiff had the deed examined by the banker, who recommended that she consult a lawyer, because the description was involved. She did so and accepted the deed, giving back a mortgage on the farm for part of the purchase money. • The evidence also tended to show that, while the deed remained in escrow, one of the agents wlm negotiated the trade made a plat of the land covered thereby for the plaintiff. She admits that she knew as early as May, 1906,. that all of the Lang farm had not been conveyed to her, but made no complaint to any one before the following December, when she brought the matter to the attention of her attorneys, who notified Lang on December 24,1906, of the nature of her claim. She expressed herself to the agent, Bates, in September, 1906, as being satisfied with her deal. From these facts,, was the tidal court justified in drawing the conclusion that the plaintiff accepted the deed as a compliance with the contract ? The plaintiff has done nothing that has misled the defendant Lang to his disadvantage, but it is not necessary that the facts essential to constitute an estoppel should exist in order to defeat the action. If there has been an acceptance of the deed as a fulfilment of the contract, that is all that is necessary, and we think the court was justified in finding that there was [485] siicli an acceptance under the following authorities: Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Ripley v. Sage L. & I. Co. 138 Wis. 304, 119 N. W. 108; Segelke & K. Mfg. Co. v. Vincent, 135 Wis. 237, 115 N. W. 806; Rose v. Bradley, 91 Wis. 619, 65 N. W. 509; Miller v. Ryder, 145 Wis. 526, 130 N. W. 518. In a dissenting opinion in Ripley v. Sage L. & I. Co. the writer expressed his disapproval of what he deemed to he an extension of the doctrine of former cases, hut, having done so, feels that it is his duty to acquiesce in the decision of the court in that case and to follow it in other cases falling legitimately within the principle of the decision. By the Court. — Judgment affirmed.