George v. Oswald, 273 Wis. 380 (Wis. 1956)

MaRtin, J.

Paul Oswald was the owner of a tract of land on Highway 100 which he listed for sale with Conrad Sailer, a real-estate agent. On March 3, 1954, plaintiffs signed an

offer to purchase .said property for $17,000 and Oswald accepted. Among other things the offer included the following terms of payment:

On March 4, 1954, George gave an exclusive listing contract for the sale of his Oconomowoc property to Sailer who had expressed the opinion that said property was worth $32,000. On April 12th plaintiffs received written notice demanding that the deal on the Highway 100 real estate be closed within five days, and on the following day Mr. George made written demand for the return of the $1,000 earnest money.

It is first contended that the offer to purchase is void as not complying with the statute of frauds in that the time of payment of the $10,000 balance was uncertain and indefinite.

The contract stated the sale was to be closed on or before April 6th. It also stated that the $10,000 balance was to be paid on the day of the closing of the sale of plaintiffs’ Ocono-mowoc home. There is nothing in the contract to indicate that the closing of the deal depended on the sale of the Ocono-mowoc property. On the contrary, the wording of the contract does indicate that the sale of the Oconomowoc home could take place after the April 6th closing provided in the offer to purchase. In testifying to a discussion had with Sailer prior to drawing up the offer to purchase, Louis George stated:

able to pay for it in that way. So he told me if I gave him a listing on the property that he would arrange to sell it and in that way the money could be raised. He asked how much money I could pay on the place and I indicated that I could pay seven thousand dollars down and the ten thousand dollars would have to be carried until my property was sold.”

In our opinion the understanding of the parties is expressed in the contract. The fact that the Oconomowoc home was not sold is immaterial since plaintiffs repudiated the contract before the expiration of ninety days from the date of the offer. In the absence of any showing to the contrary, we must assume that the Oconomowoc property was worth $32,000 as indicated and that it could and would have been sold within the ninety days had the deal been closed as the contract provided. As pointed out in Frangesch v. Kamp (1952), 262 Wis. 446, 450, 55 N. W. (2d) 372:

In dealing with Oswald’s agent for the purchase of the Highway 100 property, plaintiffs were dealing with the same party with whom they were negotiating for the sale of their own property in Oconomowoc. We must assume that the statements made in the offer to purchase as to payment of the $10,000 balance within a ninety-day period were true and were capable of performance and, thus, that the terms stated were definite and certain.

In Kenner v. Edwards Realty & F. Co. (1931), 204 Wis. 575, 236 N. W. 597, a contract for the purchase of real estate, stating that the vendor was to procure a mortgage in a definite amount which he was negotiating with a third party and which the purchaser was to assume, was construed as sufficiently definite within the statute of frauds.

“In interpreting doubtful agreements a court will, if possible, attach a sufficiently definite meaning to a bargain of

parties who evidently intended to enter into a binding contract. ...” 1 Williston, Contracts (rev. ed.), p. 100, sec. 37.

The contract further reads:

Plaintiffs state that at all times they were negotiating for the purchase of three and one-half acres, but that from the legal description they could have no idea as to the quantity of land to be conveyed. They had viewed the property and paced it off; the contract, in addition to the legal description, stated “about 3)4 acres” and gave the dimensions of 100 feet by 1,276 feet, which amount to somewhat over three acres, as testified by the plaintiffs’ architect who examined the survey of the property. There was no inadequacy or ambiguity in the description of the land.

It is further stated in the contract:

Plaintiffs contend that an existing easement for highway purposes constituted an incumbrance not excepted by defendants. We cannot agree. It may be noted that the contract provides:

free and clear of all liens and incumbrances, excepting: Municipal and zoning ordinances and recorded easements for public utilities; recorded building restrictions.”

It has been held in Miller v. Milwaukee Odd Fellows Temple (1932), 206 Wis. 547, 559, 240 N. W. 193:

Plaintiffs argue that authority to construct a driveway across the full frontage of the land was a condition precedent. The trial court found:

There is ample evidence in the record to support the finding. Sailer testified that the offer to purchase was drawn by him three or four days prior to its execution and at that time he was not aware that a driveway could not be extended the full 100-foot frontage; that he checked with the highway department before the contract was signed, and before Mr. George signed it he advised him that it would be impossible to have such a driveway. lie testified that he showed to George a sketch made by the highway department (Ex. 15) and explained that the law would permit two 40-foot driveways with 10 feet between.

On this evidence we must conclude that the language in the contract wás not meant to state a condition precedent; that by the words “driveway should extend full frontage” the parties understood a full 100-foot driveway was desirable, but that two 40-foot driveways would serve the plaintiffs’

purposes. Under the circumstances in this case, the word “should” was not meant to be mandatory, but indicated desirability or preference. See Texas & Pacific R. Co. v. Consolidated Companies (1934), 180 La. 180, 156 So. 215; Wallace v. Boston & Maine R. (1904), 72 N. H. 504, 57 Atl. 913.

Although George testified he did not know of the driveway restriction until March 30th, he stated that he called Sailer a number of times after the contract was signed to see whether he had obtained "permission to put a full driveway in over the entire 100 feet of frontage.” This would indicate he knew such a driveway was not allowed.

George had engaged an architect, Lloyd Ernst, to draw plans for buildings on the property. Mr. Ernst testified that the buildings, placed as George wanted them, could not be put on the property; that at George’s request he tried to purchase more land, but could not. In a letter dated April 13, 1954, George wrote Sailer:

Obviously, plaintiffs found the land unsuitable because it would not accommodate the buildings as planned. The comment that less than a full driveway would not be conducive to the plaintiffs’ business was apparently an afterthought.

There is nothing in the record to indicate that, prior to drawing up the contract, George had advised Sailer he could not use the property unless a 100-foot driveway would be permitted. On the trial George testified he told Sailer on March 30th that the deal was off,—

“That because of the heavy trucking that I had in and out of my place of business, a driveway with two drives on a small 100-foot lot would just not be conducive to traffic and I told him I wouldn’t, under those circumstances, — I wouldn’t be able to use the property.”

There is no question the plaintiffs preferred a full frontage driveway and hoped to get permission to construct it, but the record fails to show any facts which would have rendered the property unsuitable if such a driveway were not permitted.

Plaintiffs cite Helmholz v. Greene (1921), 173 Wis. 306, 181 N. W. 221, where the condition that the purchaser satisfy the tenant in possession of the property was held to be a very material one. But here, where the plaintiffs signed the contract and paid $1,000 earnest money after being advised of the driveway restrictions, the provision that the “driveway should extend full frontage on Hy 100” cannot be construed as material.

By the Court. — Judgment affirmed.