Sedgwick v. Blanchard

Owen, J. Respondent contends that the decision of the former case (164 Wis. 421, 160 N. W. 267) is res adjudi-cata. This depends upon whether the facts proved and found by the court substantially differ from the allegations of the complaint. If the facts upon which the present judgment is predicated are substantially different from the allegations of the complaint, then the formér decision is not res adjudicata and the present record must receive original investigation. Smith v. Sherry, 54 Wis. 114, 11 N. W. 465; Baker v. Madison, 62 Wis. 137, 22 N. W. 141, 583; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Case v. Hoffman, 100 Wis. 314, 75 N. W. 945. The court found that within a few days after the execution of the contract alleged in the complaint the defendant E. B. Blanchard and his wife entered into possession of the premises and personal property described in the contract, and for a year and a half faithfully performed the conditions of the contract; that on or about July 8, 1905, the said E. B. Blanchard and his wife, Elizabeth, having become dissatisfied with the terms of the contract, voluntarily breached the same, left and abandoned said premises, and left the father, H. C. Blanchard, in exclusive control thereof; that about a month later the father, upon promise of making better terms with them, induced them to return to the premises, and on August 8, 1905, they did return to the premises and continued to work and farm the same and to support and maintain the father down to the time of his death, March 23, 1915; that on March 11, 1915, the father executed a deed to the son wheféby he conveyed the entire farm to him upon condition that he provide support and maintenance for the father during the remainder of his life and upon his [125] death pay to the plaintiff, Edith Sedgwick, the sum of $1,000. This circumstance is not revealed by the allegations of the complaint. The complaint alleges that soon after the execution of the contract the defendant Ernest B. Blanchard “entered into possession of said real estate and the said personal property under the said contract and H. C. Blanchard commenced living with said Ernest B. Blanchard, as provided in said contract, and the parties to said contract continued to act and live under it until the execution of the deed by said H. C. Blanchard to the defendant Ernest B. Blanchard, as hereinafter alleged.” It then alleges the execution of- the deed of March 11th. It will be noticed, therefore, that the record on the prior appeal did not disclose the breach of the contract of July 8, 1905, nor the reentry or repossession of the premises by the father. While mention is made in the opinion on the former appeal of a breach of the contract, it doubtless referred to the execution of the deed of March 11th, which was contrary to the terms and conditions of the contract. It did not refer to the breach occurring, as the court found, July 8, 1905. It is plain that the record before us presents a situation not disclosed by the record on the former appeal and the rights of the parties must be considered in the light of the present record. ' Whatever right the plaintiff, Edith Sedgwick, has to a conveyance of the eighty acres claimed by her, is referable to the contract of December 31, 1904. As we have seen, the terms and conditions of that contract were never executed., The contract was breached by E. B. Blanchard, who left the premises, refused to further perform the conditions thereof, and the father, H. C. Blanchard, was restored to the exclusive possession of the farm and personal property. The "contract itself provided that the failure of the said E. B, Blanchard to keep or perforan any of the conditions thereof [126] should render the contract null and void. It is difficult to perceive why, in view of that provision in the contract itself, the breach thereof on the part of E. B. Blanchard, coupled with a re-entry on the part of the father, did not effectually put an end to the contract and a[J rights created by it. It is true that this court has gone a great ways in sanctifying contracts made for the benefit of third parties. In Wetutzke v. Wetutzke, 158 Wis. 305, 148 N. W. 1088, in a similar transaction between father and son, where the son agreed to pay certain sums to third parties and executed a mortgage to secure such payments, it was held that the relation of debtor and creditor was established between the son and such beneficiaries, which relation could not be changed by agreement between the father and son without the consent of the beneficiaries, and the mortgage executed by the son was enforced against the premises notwithstanding the fact that the premises had been reconveyed to the father when it became apparent that the original arrangement could not be agreeably carried out. That case probably marks the limit which this court will go in enforcing contracts of an executory nature made for the benefit of third parties. In the Wetutzke Case there was no provision in the contract that in case of a breach thereof it should be null and void, nor was there a re-entry pursuant to a breach, which facts distinguish that case from this. It seems plain that the rights of plaintiff in and to the premises, a conveyance of which she seeks, were put at an end upon the termination of the contract by its own terms upon the occásion of the breach thereof by E. B. Blanchard July 8, 1905, followed by a re-entry on the part of the father, and that she cannot compel a conveyance thereof. It is argued by respondent that the defendants should not be permitted to profit by their own breach of the original ' contract. We fail to appreciate the force of this argument. Upon the breach of the contract the father was in a position [127] where he was compelled to negotiate with some one relative to the management of the farm in such a way as would assure him his future support and maintenance. It is quite plain that if he had entered into an arrangement with a third party, plaintiff would have had no claims upon such third party. We know of no reason why his right in this respect should be limited to third parties, nor why he and his son might not enter into a new arrangement with the same force and effect that would be accorded an agreement between the father and a third person. The first contract was at an end and had no more existence than though it had never been executed. Being at an end, it could constitute no barrier to the right of the father and son to enter into the new arrangement. It follows from what has been said that the judgment should be reversed. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing plaintiff’s complaint.