Heins v. Thompson & Flieth Lumber Co.

Marshall, J. The principal point raised by appellants is that the finding that defendants made a contract with plaintiff to purchase the land, as claimed, is not supported by the evidence. Respondent first replied that exceptions to the findings were not filed within ten days after due service of notice of the entry of judgment as provided by sec. 2870, Stats., and were not incorporated into the bill of exceptions. No answer is made thereto by appellants’ counsel. The record discloses that notice of the entry of judgment was duly served on the 8th day of November, 1916, and that exceptions to the findings were not filed until seventeen days thereafter. A copy thereof, marked in pencil, “duplicate,” is in the bill of exceptions with pencil marks across the face. The trial court certified that the bill contained “the exceptions filed to the findings.” We conclude that the paper marked as aforesaid was in the bill when certified and was taken as a copy of the exceptions, and hold that they were sufficiently incorporated in such bill. The court may allow exceptions to findings to be filed after the time provided by statute. Ottillie v. Wœchter, 33 Wis. 252. While exceptions filed without leave after the time has expired are of no effect, — Wis. River Imp. Co. v. Lyons, 30 Wis. 61, — exceptions not so filed, if found in the record unexplained, are to be regarded as having been filed by leave under sec. 2831, Stats. Henrizi v. Kehr, 90 Wis. 344, 63 N. W. 285; Killingstad v. Meigs, 147 Wis. 511, 133 N. W. — 569 — 632. So we conclude that the exceptions here were regularly filed and sufficiently incorporated in' the bill and that they are sufficiently specific to permit a review thereof without the aid of sec. 2405m, Stats. . We are unable to find any satisfactory evidence of defendants having made contracts with -.plaintiff as found by the court, but do find quite satisfactory evidence that Thompson & Flieth Lumber Company did do so. The defendants W. S. and H. G. Flieth do not appear to have dealt with plaintiff in their individual capacities. They were not engaged in dealing in lands but their company, under their administration, was so dealing. The whole history of the matter indicates that they-so dealt in the particular case; that plaintiff’s agent-so understood the matter and that M. A. Flieth, wife of W. U. Flieth, as the fact is, did not have anything to do with the matter; but her name was used to represent the real party, — the corporation. The first letter on behalf of plaintiff proposing to sell the land, as the statement indicates, was, addressed to W. H. Flieth, who was the secretary and treasurer of the corporation, and who, naturally, as the fact was, conducted the correspondence on the part of the proposed purchaser. Such purchaser was plainly indicated by the reply, in the name of the company, that W. U., the secretary,, would take the matter up with 11. G., the president, and if he wanted to do anything about the matter “I shall be pleased to advise you without delay.” That indicates that the whole subject was left to the president to dictate, which was a natural course if the matter was a corporation enterprise. There is nothing about the situation up to this point to indicate that II. G. was negotiating as a .proposed purchaser. That he was not is confirmed by the further letter written in the name of the company to the agent that H. G. had directed that the papers be gotten out on the basis of the proposed sale; the name of M. A. Flieth to be used as the executory vendee, — 570 — who really had nothing to do with the matter, as before stated. The making ont and sending of the contracts‘and abstracts which later occurred, and assent to the terms thereof, which clearly occurred, supplied any previous want of a specific agreement as to terms of payment for the land. That the contracts as drawn were agreed to, unmistakably appears by the fact that no objection was made to them, though they were retained for months before the final act occurred refusing to execute them; that, after they were received, $300 of the stipulated down payment was made thereon and that, in the end, the refusal to complete the matter was upon the ground of false representations and that such notice of refusal was conveyed by a letter in the name of the corporation. The $300 appears to have been sent in a personal letter of H. O. Flieth, the president, after the written contracts and abstracts were received by the company, and some time later the secretary excused failure to have the papers executed upon the ground that he had not had time to take the matter up, evidently referring to examining the abstracts. The letter written some time later, in the name of the company by the secretary, declining to carry out the contracts upon the ground of false representation and requesting a return of the $300, is consistent only with the money having been paid by the corporation, regardless of whether it was furnished by-H. Or. Flieth personally. It is significant that the latter spoke of the money as that which “we,” evidently referring to the corporation, “have advanced in the deal;” that return of the papers was offered only upon condition of a return of the money; and that in an independent transaction with plaintiff this $300 was treated as corporate property. The foregoing convinces us, as before indicated, that the • contracts claimed to have been made with defendants were not made with them but were, in fact, made with Thompson — 571 — & Flieth Lumber Company, the name of M. A. Elieth being used to stand for that of tbe compáhy, though without any concern of hers, and that the court should so have found. All of the writings may properly be considered together. If in all a contract in writing clearly appears, which we think is the case, that satisfies the statute of frauds, and all requisites of specific performance. Curtis L. & L. Co. v. Interior L. Co. 137 Wis. 341, 118 N. W. 853. There does not appear to be any difficulty as to the terms of the agreement, since the minds of the parties evidently met, as indicated, in the formal written contracts^ the name of’ M. A. Flieth being used, as we have suggested and all understood, to represent the corporation. The contracts were sufficiently signed on the part of the vendor by his agent. Such is the statute, sec. 2304, Stats. Dodge v. Hopkins, 14 Wis. 630; Smith v. Armstrong, 24 Wis. 446; Brown v. Griswold, 109 Wis, 275, 85 N. W. 363; Tufts v. Brace, 103 Wis. 341, 79 N. W. 414. The signature of the vendor to the writing was sufficient to give it validity if the other party accepted and adopted-it. Lowber v. Connit, 36 Wis. 176. That there was such acceptance and adoption appears by the contracts having .been retained without objection for months, the payment made thereon, no objections having been made to the title, and the refusal to perform having been upon the ground of false representation, which, if true, would have constituted igood ground for rescission and seems to have been claimed for that purpose. It follows that, had plaintiff refused to perform upon receiving full payment or being duly tendered the same, the vendee Lumber Company could have compelled him to do so by action for specific performance. The-right of the vendor, in such case, may be likewise enforced. Their rights are mutual as to remedies. • Pomeroy, Contracts (2d ed.) sec. 6; Waterman, Spec. Perf. § 15. This court has so held, as in — 572 — dicated in cases cited by counsel for respondent: Gates v. Parmly, 93 Wis. 294, 306, 66 N. W. 253, 67 N. W. 739; Kipp v. Laun, 146 Wis. 591, 602, 131 N. W. 418; Curtis L. & L. Co. v. Interior L. Co. 137 Wis. 341, 346, 118 N. W. 853. That is the general rule, as indicated in 36 Cyc. 565, notes 49 and 50, though, in practice, payment of the purchase money is, probably, generally enforced by the sale of the land to satisfy the amount due for purchase money and costs, and a judgment for the deficiency, if any, enforceable by execution. 36 Cyc. 566, note 54; Loveridge v. Shurtz, 111 Mich. 619, 70 N. W. 132; Anderson v. Wallace L. & M. Co. 30 Wash. 147, 70 Pac. 247; Burger v. Potter, 32 Ill. 66; Corbus v. Teed, 69 Ill. 205. We incline to the view that such is the better practice, or a resort to the remedy by strict foreclosure, which is the ordinary way of enforcing the rights of a vendor under a land contract, especially in absence of some special circumstances showing clearly that such remedies are inadequate to fully protect the vendor’s right. Otherwise, in case such relief as was granted here is awarded, without provision limiting enforcement of the requirement to pay, to use of an execution, as in ordinary cases for the enforcement of a money recovery, such enforcement might be by a contempt proceeding contrary to the policy of our system. There is a provision here for an execution; but it seems to be in addition to the positive requirement to pay the amount due. There is no special circumstance warranting such a drastic remedy. So if there should be specific performance as to execution of the contracts, it is thought • , that justice requires a milder remedy for enforcement of payment of the purchase money. It may be that relief of the nature of that granted here has been sanctioned in this court but we do not find any instance of the kind. The relief sought in Gates v. Parmly, supra, was by strict foreclosure. In Kipp v. Laun, supra, — 573 — the remedy for collection was by execution, and in Curtis L. & L. Co. v. Interior L. Co., supra, there was no provision to enforce collection. The findings of fact, aside from the one above treated, appear to be sufficiently supported by tbe .evidence and no reason appears wby there should not be specific performance decreed as to the real executory vendee executing the contracts. It is suggested that whether specific performance should be granted in any case of this sort rests in the sound discretion of the court. That is not strictly so. There is no arbitrary judicial power in such a case. The parties being competent to contract, and having made an agreement reasonably certain in all its parts, and not objectionable for unfairness or inequity, there is no room for the exercise of judicial discretion as to whether it should be specifically performed. Such performance is a matter of right. No reason is perceived why that does not apply in this case. The judgment should be reversed except as to the Thompson & Flieth Limber Company, as to which it should be modified to require the written contracts to be executed by it as sole vendee, and otherwise so as to harmonize therewith, and, further, should be modified to provide for enforcement of payment of the amount adjudged to be due on such contracts up to the-time of the re-entry of judgment in the court below, including back taxes, by execution only; but without prejudice to plaintiff proceeding by action to enforce such contracts by strict foreclosure, in lieu of so collecting such amount due, or in case of failure to so collect. The judgment should be for costs against said company and for dismissal as to the other defendants, without costs to either side. By the Gourt. — The judgment is ordered in accordance with this opinion, and the cause remanded for further proceedings in the court below, as here directed. Plaintiff, — 574 — upon filing the record in such court, may, upon ten days’ notice to the attorney for the Thompson & Flieth Lumber Company, re-enter judgment there in accordance- herewith, the re-entered judgment to include the amount due upon the contracts and amount required to pay the hack taxes down to the date of the re-entry. Judgment for costs in this court is to go in defendants’ favor for clerk’s fees only.