Morrow v. Townsend

KBRWisr, J. It is contended by counsel for appellant that the court erred (1) in refusing to find that the intention of the parties to the contract was to exclude from the contract all of block 1 and lot 1 in block 2 of Humphrey’s addition to the village of Mount Hope; and (2) in making the finding that it was the intention of the parties, when the contract was signed, to exclude therefrom all of Humphrey’s addition to the village of Mount Hope, comprising four blocks. The main question presented here for our consideration is whether the court below, upon the evidence, was warranted in finding that it was the intention of the parties to the contract to exclude the four blocks and whether the contract was sufficiently definite for enforcement. It is established in the case that Robert G. Humphrey, while the owner of the eighty-acre tract in question, and on May 14, 18†¶, platted a part of it as Humphrey’s addition to the village of Mount Hope and caused the plat to be recorded; that the land so platted consisted of four blocks of eight lots each with the streets surrounding them; that said Humphrey, while the owner and after said plat had been recorded, conveyed lots 1, 4, 5, and 8 in block 1, and lot 1 in block 2, and said lots have been ever since held by the grantees thereof; that thereafter Humphrey died seised of the balance of said lands and the same descended [156] to Maggie McWilliams, Mary II. Townsend, Jennie Morrow, and Cora Humphrey, his daughters, subject to the life estate of his widow, Mary J. Humphrey; that on February 4, 1889, the widow and heirs conveyed to Wayne Williams lots 2, 3, and 6 in block 1 in said addition, which lots have since been held by him and his grantees, and on February 5, 1889, the contract under consideration here was made, and at this time all of block 1 and lot 1 of block 2 had been conveyed and were inclosed and occupied by the owners under the conveyances. The difficulty arises from the use of the word “lots.” It seems quite clear that the parties could not have meant to exclude only four lots, because at that time more than four lots had been sold and were owned by other parties. Moreover, the contract on its face excludes the idea that four lots were intended and supports the idea that four blocks were intended. The exception in the contract is “four village lots, which lots are an addition to the village of Mount Hope.” The four blocks constituted the addition to the village of Mount Hope, while four lots did not. The addition embraces thirty-two lots. Moreover, there is nothing in the contract or the sur-' rounding circumstances attending the parties at the time of execution of the contract from which an inference could be drawn that four lots were intended, and certainly, even if it could be said that four lots were intended, it would be impossible to determine which four lots were meant, and specific performance, therefore, could not be enforced. Hannon v. Scanlon, 158 Wis. 357, 148 N. W. 1082. The court below found that the intention of the parties when the contract was signed was to exclude therefrom all of Humphrey’s addition to the village of Mount Hope, comprising four blocks, and we are inclined to the opinion-that this is the only consistent construction which can be given the contract. The case, therefore, turns on whether, this finding is supported by competent evidence. The words of the contract, “four village lots, which lots are an addition to'the vil [157] lage of Mount Hope,” create a latent ambiguity, and parol evidence was therefore proper to show the situation of the parties to the contract, the state of the property, and the location of the addition. Lego v. Medley, 79 Wis. 211, 48 N. W. 375; Messer v. Oestreich, 52 Wis. 684, 10 N. W. 6. Very little evidence was offered, and doubtless very little could have been produced in view of the circumstances of the case. But there was evidence that at the time of making the contract an addition consisting of four blocks was located on the eighty acres in question, and there is some evidence which at least tended to show that the four blocks were intended to be reserved, not four lots. It is plain that no four of the village lots constituted the addition, and it is quite apparent from all the surrounding circumstances existing at the time the contract was made that the scrivener inadvertently used the word “lots” when the intention of the parties to the contract was to except the four blocks; at least we think the court below was justified in so finding. We do not’ feel warranted- in disturbing the finding of the court below, therefore the judgment must be affirmed. By the Cloart. — The judgment is affirmed.