Bast v. Sproll

Eschweiler, J. Upon this appeal appellant plaintiff presents no question other than his assertion of a right to recover the sum of $7,000 mentioned in the agreement set forth in the complaint as though such were a promissory note by defendants for that amount, and states in his brief that this is not an action for specific performance but for money as upon a completed sale. He contends that the clause in the contract, “in case of sale of our farm as stated above, this paper will constitute a note for the above amount, $f,ooo, until paid, interest at the same rate as paid on the farm,” contains all the essential elements of a promissory note and made a binding obligation on the defendants to pay that amount, the condition precedent to a sale of the farm having been performed. This quoted sentence from the contract, however, expressly refers to other portions of the written contract, and, the whole thereof being pleaded by plaintiff, the entire contract must be considered in determining the rights and liabilities of the parties. It is apparent that in the contract there is no specific provision as to the rate of interest to be paid on the said sum or definite time fixed when it shall become due and payable. As to the interest, the presumption might be indulged that the parties contemplated the legal rate, as held in Schmeling v. Kriesel, 45 Wis. 325, 327. Where nothing is specified as to the time of payment the obligation may be considered presently due, as in a demand note such as provided for in sub. (2), sec. 1675 — 7, Stats., or as stated in such cases as Husbrook v. Wilder, 1 Pin. 643; Irish v. Dean, 39 Wis. 562, 567; Thompson v. Ketcham, 8 Johns. 190; Porter v. Porter, 51 Me. 376; Adams v. Adams, 55 N. J. Eq. 42, 35 Atl. 827, dealing with promissory notes; or in accord with [374] the rule as to the payment of the purchase price on a sale, as in Bartz v. Paff, 95 Wis. 95, 99, 69 N. W. 297; Nichols v. Ruggles, 76 Me. 25. The plaintiff, however, cannot support his contention that he is entitled, to have the contract enforced as a promise to pay $7,000, for the reason given by the trial court in sustaining the demurrer. The contract lacks the essential element of being definite as to the time of payment. It clearly appears upon the face of the contract that the parties provided that the $7,000 obligation, if any, arising upon the sale of the farm was not to be paid as one sum. It was expressly split in two sums so far as time of payment was concerned; $5,000 was to be paid forthwith and no provision for interest on such amount contemplated or mentioned ; the, balance of $2,000 was to be paid at some indefinite time in the future and interest was to be paid thereon. Such latter provision manifestly includes the idea of a period during which the payment of the $2,000 is by agreement not subject to present demand as was the $5,000. Being so left indefinite in such a material particular by the parties themselves, and there being no presumption which would warrant the court in fixing any particular time as being the end of any agreed period for the recognized extension of time for the payment of the $2,000, the court cannot by its decree now make for the parties that which would have to be a' new and court-made contract. The situation here presented is clearly controlled by the cases of Buck v. Pond, 126 Wis. 382, 384, 105 N. W. 909; Poole v. Tannis, 137 Wis. 363, 365, 118 N. W. 188, 864; Schmeling v. Kriesel, 45 Wis. 325, 328. A very similar situation is presented in the case of Rahm v. Cummings, 131 Minn. 141, 155 N. W. 201. The trial court was therefore right in sustaining the demurrer to the complaint. By the Court. — Order affirmed.