Scholl v. Muscovitz

Winslow, C. J. The judgment seems a very harsh one to be rendered by a court of equity. The defendant had faithfully performed his contract for board and súpport for more than thirteen years; he had made the annual cash payment of $75 up to the time-of the trial, one such payment having been accepted even after this action was brought; he had arranged for the board and care of his father at his sister’s at his own expense when the break-up of his own household took place, which arrangement was satisfactory' to the deceased; he had paid $1,150 out of the $1,500 agreed to be paid to the three beneficiaries and stood ready/to pay the balance whenever a person legally entitled to receive the same should be appointed. Apparently the deceased retained possession of the two acres and rented it to third parties notwithstanding the disagreement about the plowing. The total-cash paid out by the defendant under his agreement aggregates $2,250, and the evidence seems to show that he was ready and anxious to carry out his agreements at the time of the trial. We cannot regard the breaches as really substantial nor as justifying a court of equity in revesting the title in the deceased. Such a court will avoid the enforcement of a forfeiture if possible and has other remedies which it may and ought to administer in case of insubstantial’ breaches of conditions like the present, where such conditions have been faithfully performed for many years, where the defaults are not wilful,, and the condition of forfeiture was evidently inserted as security for the performance of acts damages [100] for the breach of which may fairly be estimated in money. Maginnis v. Knickerbocker Ice Co. 112 Wis. 385, 88 N. W. 300; Danielson v. Danielson, 165 Wis. 171, 161 N. W. 787. In the present case there were really no substantial breaches which could not be measured in money. The deceased, upon the break-up of the defendant’s family, had accepted as satisfactory board and care at his daughter’s, to be paid for by the defendant; and there is nothing to show that this board and care was not in substantial accordance with the contract. There cannot be^ said to be any breach here, because the deceased accepted the substitution as entirely satisfactory and also accepted the annual cash payment of $75 several months after he commenced to board with his daughter. So far as the plowing and cultivation of the two acres is concerned, damages for the breach of this agreement could be readily measured in money, and there was in fact no other breach, for the failure to pay the entire $500 to Mary Stillwell cannot be called a breach under the circumstances shown. Clearly the court should have provided for the deposit of the money due to the Stillwell estate in court within a reasonable time and the giving of security for the board and care of the deceased and the payment of the annual amount due him as well as the plowing and cultivation of the two acres, or these charges could have been made liens on the land to be foreclosed in case of noncompliance with their terms, and thus the evident injustice of taking the farm away from the defendant after he had paid so much for it would have been avoided. The death of the father so soon after the supposed breach makes the injustice of a forfeiture of title more apparent and the framing of the proper judgment easier. The court should require the Stillwell money to be paid into court within a reasonable time to be fixed and should ascertain the amount due the estate of the deceased for plowing and cultivation of the two acres and for board [101] and care (if such board and care has,not already been paid for by the defendant), and also require these sums to be paid into court within such time as fixed, and upon the performance of these conditions render judgment confirming the title in the defendant, and in case of nonperformance divest the defendant’s title and vest it in the heirs of the deceased. By the Court. — Judgment reversed, and action remanded for further proceedings and judgment in accordance with the opinion.