Maxon v. Gates

Tbe following opinion was filed June 17, 1908:

BashRokd, J.

Counsel for appellant concede that the issue raised by tbe answer, that tbe contract of January 8, 1900, was executed conditionally, is settled by tbe special verdict in view of tbe conflicting testimony. We have, then, as a starting point, an absolute contract binding upon both parties. It is urged, however, on behalf of appellant that tbis contract was abrogated by mutual consent of tbe parties. Abrogation, like a release or discharge, is new matter constituting a defense, and, if relied upon, must be specially pleaded. Sec. 2655, Stats. (1898) ; 18 Ency. PL & Pr. 89 Salchert v. Reinig, 135 Wis. 194 , 115 N. W. 132 . Tbe answer alleges that on January 16, 1900, the parties mutually agreed that tbe contract was abrogated and annulled. Tbe jury, in answer to tbe fifth question of tbe special verdict, found that the parties did not on January 16, 1900, mutually agree that the contract of January 8, 1900, should *280 not be enforced. Appellant’s counsel now contend that the question whether the contract was subsequently abrogated by mutual consent is not foreclosed by this finding, and that defendant’s motion for judgment notwithstanding the special verdict leaves this question still open. The questions for a special verdict, as prepared by the court, were apparently approved by counsel for appellant. Certainly no modification thereof was suggested and no objection thereto taken, and the question of abrogation, as raised by the pleadings, must therefore be treated as having been fairly submitted. After the verdict was received this question and answer were not challenged by defendant’s counsel, who made a motion for judgment notwithstanding the verdict. The motion for judgment notwithstanding the verdict admits for the purpose of the motion the existence of the facts found by the jury, and asserts that, taking the verdict at its face, the judgment should go the other way. Muench v. Heinemann, 119 Wis. 441 , 96 N. W. 800 ; Hay v. Baraboo, 121 Wis. 1 , 105 N. W. 654 . It does not challenge the sufficiency of the evidence to support the findings, and cannot, therefore, be treated as a motion to set aside the verdict upon that ground. There was no motion to set aside the verdict, and consequently this court cannot review the evidence upon the subject. We conclude, therefore, that this issue of abrogation was settled by the special verdict.

This conclusion is re-enforced by the provisions of the order to reopen the case for the trial by the court of the questions relating to the title and value of the quitclaim-deed lands. It was therein stipulated that the findings of the jury should be taken by way of a special verdict as to all the issues except those mentioned. The form of the verdict was then under consideration, as appears from recitals to the order. It was not challenged either as to the form or the sufficiency of the questions to be submitted, and it is clear that counsel then understood that it covered all the contro *281 verted facts except sucb as were reserved for trial by the court. There was no motion to set aside the answer to this question after the verdict was rendered, and no suggestion then made by counsel that this issue had not been determined. Thereafter, for a period of more than two years, at different intervals, the court was engaged in hearing proof upon the questions reserved, the arguments of counsel, and preparing the findings and judgment. There was no occasion for this continued, protracted, and expensive trial if the contract was not in force, as all the subsequent proceedings were had for the purpose of ascertaining the amount of damages for its breach. We must hold that appellant’s counsel, by their conduct as above indicated, have treated this question of the abrogation of the contract as embraced in and determined by the special verdict or as established by the undisputed evidence. Geisinger v. Beyl, 80 Wis. 443 , 50 N. W. 501 .

Counsel for appellant insist that the finding of the court that he breached the contract is contrary to the great preponderance of the testimony. This issue, so far as it is raised by the pleadings, is decided by the special verdict. The answer denies the execution of the contract by the defendant except conditionally, and avers that it was abrogated by mutual consent on January 16, 1900. Defendant testified that upon that day he offered to perform the contract on his part and that he then tendered the deeds therein called for to the plaintiff. The jury, by the answers to the third and fourth questions, negatives these statements of the defendant. There was no objection to the form of these questions and no request to submit a question embodying an offer of performance at a later date. In answer to the fourth question the jury found that the defendant did offer to the plaintiff the tax certificates and titles held by him, “but not properly executed.” Appellant’s counsel moved to strike out the words quoted as unsupported by the evidence. The court cannot *282 change the answer to a special verdict if there is any credible testimony to support it. The answer as given is sustained by a clear preponderance of the evidence, and the court in its findings of fact adopted March 1, 1900, as the date of the breach. Counsel for appellant, in argument, do not claim that the deeds tendered to the plaintiff by the defendant were executed in accordance with the contract, but rather seek to excuse the failure to offer full performance. The proof sustained the finding of the court, to which exception was taken, as to the fact of the breach by the defendant and as to the date thereof. The plaintiff, in a letter addressed to the defendant, dated February 23, 1900, stated that he then was and for some time had been ready to perform the contract on his part, and requested performance by the latter. The defendant’s reply, bearing the same date, expressed surprise “that you should claim or demand anything from me or for the deeds,” and contained a refusal of performance on his part. Plaintiff again wrote, insisting upon performance, 'and defendant’s reply, dated February 27th, in substance repeated his refusal to perform and a denial of liability for damages. These letters and his conduct prior thereto, evidenced by correspondence and conveyances, showed beyond question that the defendant had decided that he would not comply with the terms of this contract. Appellant was not prejudiced by the finding of the court that the breach occurred on or about March 1st, and fixing upon that as the date for ascertaining the damages.

The complaint alleges that the plaintiff was and at all times had been ready and willing on his part to perform the contract. Counsel for appellant contend that this averment was put in issue by the general denial contained in the answer, and that the question has not been determined either by the special verdict or by the finding of the court. There was no request to submit this issue to the jury, but it was treated as settled by the testimony; and it would seem to be *283 too late to raise the question in view of the subsequent proceedings heretofore referred to. In the findings, of the court there is the following recital:

“And the truth of all the allegations of the plaintiff’s complaint, other than those determined by said stipulation, said special verdict, and by the findings of the court hereinafter set out, having been established on the trial by the undisputed evidence,” etc.

There was no exception to this recital by the appellant Where the recitals of the judgment amount to findings of fact they have been held sufficient, although the practice is not approved. If the defendant desired a more particular finding on this issue he should have called the attention of the court thereto and should then have taken an exception to the refusal to find, or to the finding as made, if not satisfactory. Wrigglesworth v. Wrigglesworth, 45 Wis. 255 . However, if this objection had been property and seasonably taken, we could not have reached a different conclusion from the evidence than that stated by the trial court. Mr. Maxon testified that he was ready to perform on February 23d, when the pretended tender of the deeds and certificates was made by the defendant. And the plaintiff in the letter already quoted advised the defendant he was and had been ready to perform on his part. These statements are not disputed, and the recital of the court was fully warranted by the testimony. It was held upon the former appeal that it was not necessary for the plaintiff to tender payment of the purchase price to enable him to maintain an action for a breach of this contract by the defendant. Maxon v. Gates, 112 Wis. 196 , 88 N. W. 54 .

Counsel for appellant contend that the trial court erred in treating the defendant’s ability to perform the contract on his part as one of the issues in the cause. Eeference is made to the complaint, in which it is stated that the defendant was able to perform, and it is claimed that there is noth *284 ing in tbe answer wbicb can be construed as putting tbis allegation in issue. Tbe answer does not expressly admit tbis averment of tbe complaint and contains no direct reference thereto, and it concludes witb a general denial of every allegation therein not expressly admitted. We are unable to understand why, if tbe general denial is to be treated as putting in issue the plaintiff’s ability to perform, it does not raise tbe question of defendant’s ability. In view of the •finding that tbe plaintiff was ready and willing to perform ■on bis part and that tbe defendant refused, tbis objection can have no materiality except as it relates to tbe admission of proof as to certain conveyances made by tbe defendant of tbe lands in question to other parties after tbe contract was entered into. Tbis testimony was admissible as bearing upon tbe intention of tbe defendant to repudiate tbe contract •and also as showing tbe value of tbe land from tbe consideration stated in tbe deeds. If tbe testimony was material we are unable to see bow tbe defendant has been prejudiced by its admission.

But we must bold that tbe questions raised on behalf of tbe appellant with reference to tbe proceedings upon tbe trial by tbe jury, by tbe consent order entered, are foreclosed by tbe special verdict and the order entered in connection therewith, reopening tbe case for tbe trial of tbe issues not embodied therein by tbe court. Tbis order was made upon tbe express condition that tbe findings of tbe jury then impan'eled should be taken by way of a special verdict as to all the issues in said cause other than the issues relating to the title and value of tbe quitclaim-deed lands, that tbe findings of tbe jury upon these last issues should be taken as advisory merely, and that when findings were made judgment should be entered as though all tbe issues bad been submitted to and determined by tbe jury. The special verdict, wbicb embraced tbe questions counsel then thought material for determination, found that the contract bad uot been executed con- *285 ditioxially by tbe parties, that it had not been abrogated, that it had been breached by the defendant, and the value of the lands to be conveyed by warranty deed, and also, as advisory, the value of the quitclaim-deed lands. If there was a material issue that was not embraced in the verdict as prepared, the attention of the court should then have been called thereto, or, if it was subsequently discovered that such an issue had been unintentionally overlooked, that fact should have been brought to the attention of the court, so that the order might have been modified, and the issue so omitted included therein for the determination of the court. It would seem like a travesty upon justice to proceed with this protracted and expensive trial and then to set aside the judgment upon any ground not going to its merits.

Counsel for the respective parties, by stipulation entered into December 8, 1906, agreed upon the validity or invalidity as to the titles of the lands which were to be quitclaimed by the defendant to the plaintiff under the.terms of the contract, except the tax deed marked “Exhibit Wl,” which was offered in evidence by the plaintiff and objected to by the defendant upon the ground that it was void upon its face. The trial court sustained the validity of this deed, and this ruling is assigned as error on behalf of the appellant. The tax deed recites:

and assignee of Ashland county,

“Whereas. James L. Gates, ^has deposited in the office of the county clerk of the county of Ashland, in the state of Wisconsin, seventy-five (75) certificates of the county treasurer of said county whereby it appears” that the lands described were for the nonpayment of taxes separately sold by the county treasurer of Ashland county “at public auction, and J. h. Gates

at Ashland, in the county of Ashland,the nineteenth day of May, in the year of our Lord one thousand eight hundred and ninety-one, to the said Ashland county, for the sum of three hundred fifty-two dollars and sixty-four cents,” etc.

*286 On behalf of the appellant it is claimed that this deed is void for the reason that there is nothing in it to show that James L. Gates, the grantee therein named, was either the purchaser or the assignee of the purchaser at the tax sale, and also for the reason that the deed shows that the sale was a joint sale made by the treasurer of Ashland county to the county and James L. Gates . Counsel for respondent claim that it appears from this deed that the lands were sold at a tax sale to Ashland county, and that it appears upon its face that James L. Gates is the assignee of Ashland county. Roth counsel rely upon Washburn L. Co. v. C., St. P., M. & O. R. Co. 124 Wis. 305 , 102 N. W. 546 . That case holds that substantial compliance with the form prescribed by statute is all that is required; that omissions and blunders that do not prejudice or deceive any one or affect the substance of the conveyance do not militate against the rule of substantial accuracy required by the statute. Reference is made to the three significant features material to the deed, the first of which is that the recitals therein should show that the applicant presents himself as the original owner of the certificate or as his assignee. It is apparent from the first line of this deed that James L. Gates presented himself as assignee of Ashland county. The singular verb is used, showing that the application was- made by one person only. Consequently the language used cannot be construed to mean that there was an assignee of Ashland county in addition to James L. Gates, who presented the certificates. The word “and” before “assignee” should be rejected as sur-plusage, or as written by the clerk through mistake for “an.” The second requirement, as stated in the opinion cited, is that the recital should show the name of the purchaser at the tax sale, in order that it might appear that he was a person competent to purchase. It appears from the recitals in this deed that the lands were sold to Ashland county: The words "James L. Gates’’ are inserted after “the county of *287 Ashland,” describing the place of sale, and it is not permissible to transpose those words and insert them after “Ash-land county” where it is named as the purchaser. These blunders in the reciting part of the deed, evidently made by the county clerk, cannot mislead anybody and do not invali date the instrument Counsel for appellant also refers to Sprague v. Cœnen, 30 Wis. 209 . In that ease it appeared from the deed itself that the land was sold “to the county of Brown and Edson Sherwood.” The court held that this ■could have been no other than a joint sale, which was entirely unauthorized by law, and the deed was therefore void. That decision can have no application to the deed before us upon the construction we have placed upon its 'recitals. In the granting part it conveys the land described to James L. irates, and we hold that he thereby acquired the title, and that these lands were embraced in the contract of sale to the plaintiff.

The remaining assignments of error relate to the measure ■of damages and present questions of serious difficulty in the application of legal principles to the circumstances of this case. The jury found the value of the 2,100 acres which were to be conveyed by warranty deed to be $4,000. There was a water power situated upon these lands and some indications of mineral, and the testimony was sufficient to sustain this finding. With respect to the 30,000 acres of land which were to be conveyed by quitclaim deeds, and the titles to all of which were doubtful, the jury found the value to be forty cents an acre, but made no deduction for the expense ■of clearing up these titles. There was no proof before the jury to show the condition of these titles, and this valuation covered the whole tract in its existing state of uncertainty. It was stipulated that the verdict as to these lands should be treated as advisory merely, and that the court should, upon proof to be submitted, determine the questions of title and value for the purpose of fixing definitely the amount of dam *288 ages, if any, that were to be recovered. Tbe parties themselves, after investigation, subsequently stipulated that there-were 8,251.02 acres the title to which was undisputed. The-court placed a value on this land of $23,459.43, or an average price of $2.84 an acre. The validity of the tax deed “Wl” was disputed by defendant, but it has been upheld by the court, and it embraces 1,140 acres. The trial court found the value of these lands to be $3,160, or an average of $2.77 an acre. The value of the tax-title lands, as ascertained by the court, aggregates $26,619.43. The court made-deductions from this valuation of $10,886.39, the principal item being for unpaid taxes, making the net value thereof $15,733.04. In addition thereto is the valuation of the warranty-deed lands, fixed by the jury in the sum of $4,000, making the total net value of the lands $19,733.04 in January and February, 1900 (the date will hereafter be referred' to as March 1st), which the defendant had agreed to sell the-plaintiff for $3,000 on January 8, 1900. Such a result is-startling, and, if the parties were differently circumstanced, might challenge the contract as unconscionable. But the-defendant had been purchasing tax titles upon cut-ovor lands, had been dealing in real estate in northern Wisconsin for over thirty years, and must be presumed to have had some knowledge of the location and value of these tracts, while the plaintiff’s experience in such matters was more-limited. The parties dealt at arms’ length, each competent of understanding his own interests and of protecting his-own rights. In entering into this contract they must be held to have comprehended the nature and possible consequences, of its breach. It hardly seems credible that the defendant, with his large experience in such matters, would have voluntarily sold to the plaintiff these lands for less than one-sixth of their actual value. The proof does not show any cause-for an extraordinary increase in the value of lands situated as these were between the date of the contract and its breach. *289 The conclusion of the trial court as to the amount of damages recoverable by the plaintiff has called for a careful consideration of the application of the legal principles upon which the findings are based and of the evidence upon which they are sought to be supported.

The general rule for the measure of damages in an action brought by the vendee against the vendor for breach of such contract is the value of the land the defendant contracted to sell, estimated at the time the contract was broken, less what the plaintiff agreed to pay therefor. Muenchow v. Roberts, 11 Wis. 520 , 46 N. W. 802 .

“In estimating damages the court and jury are to look at the nature and terms of the undertaking or thing to be done; how it was expected and intended or proposed to enjoy that which the parties have bargained for, and how they were and would be benefited by performance or damnified by a breach of the particular engagement under the particular circumstances.” 8 Am. & Eng. Ency. of Law (2d ed.) 584.

“And so it is often said that, in an action for a breach of contract, the damages to be recovered are such as may reasonably be supposed to have been in the contemplation of both parties when they made it.” Brown v. C., M. & St. P. R. Co. 54 Wis. 342, 353 , 11 N. W. 356, 360 .

“The damages recoverable for breach of contract are such as may fairly and reasonably be considered the natural and proximate result thereof, and in the light of circumstances, special or otherwise, known to both parties at the time of making the contract, may reasonably be supposed to have been in contemplation by them as the probable result of such breach.” Gross v. Heckert, 120 Wis. 314, 321 , 97 N. W. 952, 954 .

“So it is held that prospective profits should not be allowed, without evidence to base .the same on sufficiently certain to remove the result from the realms of pure conjecture.” 120 Wis. 329 , 97 N. W. 957 .

The market value of land at any time is the price that would in all probability result from fair negotiation, where the seller is willing to sell and the buyer desires to buy. *290 Sharpe v. U. S. 112 Fed. 893, 898 ; Ligare v. C. M. & N. R. Co. 166 Ill. 249 , 46 N. E. 803 ; Lawrence v. Boston, 119 Mass. 126 . The expressions “actual value,” “market value,” or “market price,” when applied to an article, mean the same thing. Sanford v. Peck, 63 Conn. 486 , 27 Atl. 1057 . These general rules are not questioned. They are supposed to he founded upon principles of natural justice, and should he so applied as to secure reasonable compensation to the injured party.

Where the subject of sale is a staple commodity, the difference between the contract price and the market price at the time of the breach is readily ascertainable and generally furnishes a safe standard for the measure of damages. T. B. Scott L. Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 667 , 65 E. W. 513. This rule is not altogether appropriate to the present situation, the more adequate criterion of damages here being compensation for the actual loss suffered under the principles above stated. The evidence of sales made at or about the time of the breach is admissible as bearing upon the actual value, when it appears that there has been no sudden change in conditions, and the proof in that regard offered on behalf of the respective parties has received such consideration as the circumstances seem to warrant.

The plaintiff here, therefore, is entitled to recover, as compensation for the defendant’s refusal to convey, the difference between the price agreed to be paid and the actual value of the lands on March 1, 1900, if sold in a body, subject to outstanding incumbrances, to one ready and willing to buy, such damages to be ascertained with reasonable certainty as the natural result of the breach and as within the probable contemplation of the parties at the time the contract was entered into. In the application of the law to- the evidence in this case, the court erred in adopting as a basis for compensation the value of the lands in small parcels, and in giving too great weight to the proof of sales made a *291 year or more subsequent to tbe breach and after there had been a decided advance in values. There is a great discrepancy in values of this class of lands, dependent upon the amount of timber, the nature of the soil, the remoteness of the situation from railways and settlements, and the absence of highways and schoolhouses. The court in the findings places a high value upon separate tracts of forty acres or less, 980 acres being valued at $2 or less, and the remainder at $2.50, $3, $3.50, $4, and $5 per acre, making the average about $2.80 per acre. The plaintiff himself testified: '“Prices of a small quantity of land, or land at retail, would be more than prices of land in large quantities.” Neither party could have contemplated a sale of these lands in small parcels within sixty days, or that the ineasure of damages in case of breach would be estimated by the aggregate values of separate descriptions after all outstanding liens had been discharged and the titles established. That the method of valuation was prejudicial to the defendant is demonstrated by the verdicts of the two juries. The first trial of the action took place at Ashland in 1901, and the jury fixed the value of the 30,000 acres of quitclaim-deed lands, incumbered with outstanding tax claims and with the titles uncertain, at ten cents an acre. Upon the second trial in 1901 the jury placed a valuation upon the same lands, in the same situation, at foi’ty cents an acre. The last verdict was treated as advisory merely, and was not entitled to great weight, after the parties had stipulated as to the quantity of land with good title and the amount of the outstanding liens. Had this verdict been permitted to stand, the total valuation would have been subject to a large deduction to redeem from tax sales and cover the labor and expense involved in making the necessary investigation to ascertain the condition of the titles and the amount of the incumbrances. A better test is afforded by the finding of the last jury that the 2,100 acres of warranty-deed lands, with the water power and min *292 eral rights, was worth $4,000 oil March 1, 1900. With respect to this tract the plaintiff had testified that it was worth, exclusive of the water power and timber, $3 per acre, and that the water power was worth $10,000, malting a total of $16,300. The timber had been sold subject to removal before the contract was entered into, and the defendant, in his testimony, placed a valuation upon this land of $400, including the water power, which he did not consider of any value. The jury, from these conflicting statements and the other testimony offered, reached the conclusion that this land was worth about $1.90 per acre, and this finding is not challenged by either party, by motion to set aside the answer or otherwise. It is practically conceded, at least the proof sufficiently establishes the fact, that these lands were more valuable than the remainder embraced in the contract. It is true that after the verdict was rendered further proof was offered as to the value of the quitclaim-deed lands, but after a careful examination thereof we conclude that it does not warrant the high valuation fixed by the court.

For a proper application of the rules of law, as above stated, for ascertaining the compensation to be awarded for the breach of this contract, in addition to the verdict already mentioned, the evidence may be considered with reference to the condition of the market in the spring of 1900 for the sale of land similarly circumstanced, in a body, the opinions of witnesses, based upon actual conditions, and the sales which were made at or about that time. These were known as “cut-over lands,” from which the pine and spruce had been removed, and which had been abandoned by the original owners and sold for the nonpayment of taxes. They were mainly situated remote from any railroad or settlement and were mostly without highways or schoolhouses. The hardwood, where there was any, was not readily salable by reason of the situation, and the lands possessed no immediate value for agricultural purposes, even where the soil was suitable. *293 Witnesses called by tbe defendant, wbo were familiar with the situation, testified that there was no market for such lands in large bodies in the spring of 1900, that there were hundreds of thousands of acres for sale in Ashland, Bay-field, Iron, Price, and adjoining counties, with few purchasers, and that there was no demand for such lands except for trading or speculative purposes. The highest price placed upon such lands in a body at that time by these witnesses was fifty cents an acre. The defendant, who had been dealing in such lands in northern Wisconsin for thirty-five years, testified with respect to the quitclaim-deed lands that prior to the signing of this contract he had made efforts to sell them to all the speculators and prospective buyers in the country, and that they had been looked over by fifty prospective purchasers; that he had offered them at wholesale in 1899 and 1900 at twenty-five cents an acre. The statements of Mr. Gates as to his efforts to sell these lands were not disputed. The experts called on behalf of the plaintiff placed a much higher value on these lands, basing their estimates on the situation and condition of particular descriptions and not upon the sale of the entire tract in a body. The valuation fixed by them was upon the average much higher than that found by the court. We can but feel that these witnesses were very largely influenced in giving their opinions by the sales that were made of land in small parcels and after there had been a decided advance in price, and consequently their estimates cannot have weighty consideration. It appears from a preponderance of the evidence that there was a rise in the price of such lands beginning in the latter part of 1900, and that the price increased in a marked degree during the ensuing four or five years. The actual sales made immediately before January and February, 1900, and shortly thereafter may be considered with other proof, though it cannot be given controlling weight, in determining the values to be placed upon these lands. The price agreed to be paid *294 ought also to have some hearing on this question. This sale for $8,000 embraced 2,100 acres of land to be conveyed by warranty deed, with a water power and mineral indications, which the jury has valued at $4,000, and about 10,000 acres to be conveyed by quitclaim deed.

It is apparent that the parties themselves considered the tax-title lands as of little value. During the negotiations for the purchase of these lands the plaintiff selected and purchased lands in the same vicinity of the defendant, on November 18, 1S99, 520 acres for $250, subject to outstanding tax certificates, which, when bought, made the total cost $1.43 per acre. About the same time the plaintiff purchased another tract of 1,000 acres, similarly situated, incumbered with tax certificates, for seven and one-half cents an acre, which, when the title was cleared up, cost $1.40 an acre. The defendant testified that in January, 1900, he sold 11,000 acres of cut-over lands in Price county, upon which the taxes were paid, for sixty-two and one-half cents an acre; that they were similar in character to the lands here in question, but more favorably located. This testimony was corroborated by the purchaser of the tract. Defendant testified to another sale of 10,000 acres in the same county, similarly circumstanced, at forty cents an acre; that he purchased 40,000 acres from the Weyerhauser estate in Sawyer county in 1900, with a clear title, for ninety cents an acre; that these lands were better than the Ashland county lands and were sold in 1901 for $1.50 an acre; that in September, 1899, he bought 82,000 acres of cut-over lands from Price county at twenty-five cents an acre; that in 1900 he purchased 100,000 acres of such lands from Chippewa county, of better quality and location, for fifty cents an acre; that he bought 50,000 acres of cut-over lands in Bayfield county, in January, 1900, for thirty cents an acre; that at about the same time he purchased 21,000 acres from Washburn county, with the taxes all paid, at ten cents an acre. Mr. *295 Kennan, an intelligent witness for defendant, who had had large experience in dealing in snch lands in northern Wisconsin, testified to sales made hy him, or with his knowledge, from March, 1899, to January, 1901, the prices varying with the situation and character of the lands, the quantity of timber, and the condition of the title. He mentions a sale of 520 acres, heavily timbered, on August 20, 1901, hy a warranty deed for $1,250; a sale January 11, 1901, of 3,100 acres in Ashland county, subject to tax titles, for $150; a sale of 17,000 acres of cut-over lands in Iron county, December 13, 1900, for fifty cents an acre; a sale of 4,000 acres August 10, 1901, fairly well timbered, for $1.61 an acre; a sale on October 12, 1901, of 8,000 acres, for $1.50 per acre, some of it well timbered, by warranty deed, taxes all paid, and better located than the lands in suit; a sale of 5,000 acres in Ashland county, October 20, 1901, at $1.87 an acre, the greater part of the land heavily timbered and taxes all paid; that the purchaser failed to complete the purchase, and the same lands were sold a year later for $2.50 an acre. The only sale of a large tract of land testified to by any witness for plaintiff was 11,978 acres in Ashland county, sold September 1, 1901, for $4.50 per acre. These were better lands than those here in question and carried valuable timber, and were bought by the owners of a mill for lumbering and manufacturing purposes. The purchasers required an abstract of title and warranty deeds and bought the land primarily for the timber, as they were not engaged in the real-estate business. Mr. Hash, one of the purchasers, testified that these lands were bought primarily to supply the mill which they expected to erect there, and that had it not been for the timber they would not have cared for the lands. The sale of 12,000 acres by the Uorthem Wisconsin Land Company to the Underwood Veneer Company in 1899 for $3 per aqre was of a similar character, the chief value being the timber for veneering purposes. The price paid for *296 land under such circumstances can have but little weight in determining the value of “cut-over lands” bought for an immediate resale and for speculative purposes. The proof with “respect to the sales actually made, in connection with the expert testimony, 'still leaves considerable latitude for the exercise of judgment in determining the value of the tax-title lands.

In connection with the expert testimony and the proof of ■actual sales, the evidence of the parties themselves must have great weight in determining the measure of damages which they .probably had in contemplation in case of a breach of this contract. Reference has been made to sales and purchases by the defendant in Ashland and neighboring counties in 1899 and 1900. On cross-examination the defendant stated that in his opinion the value of the tax-title lands on March 1, 1900, was $3,500, provided the purchaser was willing to put in more money to clear up the titles. Taking that as the net value and adding the amount of outstanding incumbrances, $10,899.11, the value of these lands upon this estimate is approximately $1.50 per acre. Reference has also been made to the testimony of the plaintiff of purchases made- by him in November, 1899, of two tracts of “cut-over lands,” similarly situated but in better condition, which cost him, when the titles were cleared up, on the average of about $1.42 an acre. In a letter written by the plaintiff to the defendant November 8, 1899, when negotiating for the purchase of the lands embraced in this contract, he gives his view of their value. He had then been furnished a list and had caused an examination to be made of the land situated in Ashland county, and had also sought to ascertain at what price that county would sell the tax titles and certificates which it held. He learned that the county “might be willing to sell its deeds and certificates for face.. This would make your lands cost me about, all they are worth.” He,then quotes from a letter received from a party *297 who had contemplated joining in the purchase with him, as follows:

“I was at Ashland and thoroughly investigated the list of lands you gave me, and as yet am not satisfied to go into the deal, as I find that most of the lands have been cut over, and even the hardwood and spruce taken therefrom. I went ever to Morse and went out with a woodsman myself and looked over a part of the lands, and I must say that I do not think very much of them.”

The plaintiff adds:

“I recently purchased 1,000 acres of original title, which is in far better condition than yours, for seven and one-half cents an acre. Out of the list of lands which you gave me not over 10,000 to 12,000 acres can he cleared up, as the statute of limitations has run on adverse tax titles as against you and your company, and the cream of your land is gone. In some instances you have quitclaimed, and in other instances the timber is taken off. I can see no money in it for me, unless I can get what title you and your companies have at a very nominal sum.”

He then offered $2,000 for what title the defendant and his companies had in the lands, the tax certificates to he turned over with the quitclaim deeds. The better land which plaintiff had bought for seven and one-half cents an acre, cost him, when the title was cleared up, $1.40 per acre, and it is apparent that he did not consider the land which he was proposing to buy of the defendant was of any greater value.

This view of the plaintiff’s estimate of the quitclaim-deed lands at the time the contract was entered into is reinforced by his testimony as to the value of the 2,100 acres which were to he conveyed by warranty deed. He estimated the value of these lands on February 23, 1900, exclusive of the water power, at $3 per acre, and the value of the water power at $10,000. It is apparent, therefore, that he did not consider the tax-title lands of great value at the time the *298 contract- was entered into or when it was broken. Considering the testimony of the plaintiff that the value of the tax-title lands at the time the purchase was made was less than the tract he purchased at a cost of $1.40 an acre, and of the defendant that at the time the contract was breached they were worth $1.50 per acre, and the verdict of the jury that the better lands, with the water power, to be conveyed by warranty deeds, were worth about $1.90 an acre, and the opinions of the experts and the proof of actual sales, we have concluded that the fair market value of the tax-title lands to be sold in a body in January or February, 1900, was $1.75 per acre.

The court also found that the plaintiff was entitled to-a credit in the sum of $116 for tax certificates held by the defendant and which were to be transferred to the former by the latter under the terms of this contract. The court further found that the titles of the defendant and his companies to the quitclaim-deed lands, by reason of their being tax titles, were worth fifteen cents an acre less than the value as fixed in the findings, and made the proper deduction therefor. This finding was excepted to by the defendant and is assigned as error on this appeal. A tax deed fair upon its face is, under our statute, a marketable title, and after the three-year statute of limitations has run in its favor there is no reason to question its validity. Gates v. Parmly, 93 Wis. 294, 312 , 66 N. W. 253 , 67 N. W. 739 . Nevertheless, it is a matter of common knowledge that a tax title is not as acceptable to the ordinary purchaser as an original title, and consequently it was proper for the court, in determining the amount of plaintiff’s damages, to consider the diminution of the value of the lands on that account. Without undertaking to establish any fixed rule or to prescribe any particular standard, we have concluded, in view of the approval of these titles by the attorneys of the respective parties, after thorough examination, with the exception already referred *299 to, and which has been overruled, to accept the conclusion of the trial court upon the subject that a deduction of fifteen cents an acre is reasonable under the circumstances of this case. Making this deduction, the net value of the tax-title lands is $1.60 per acre. The plaintiff is also chargeable with $3,000, the purchase price of the land, no part of which has been paid, and also with the amount required to pay and redeem from the taxes outstanding against these lands, as found by the trial court, in the sum of $10,899.77. There were 9,397.02 acres of tax-title lands, the value of which, at the net value of $1.60 per acre, amounts to $15,035.23, leaving the value thereof, after deducting the amount required to pay outstanding taxes, $4,135.46. Upon the foregoing basis the amount the plaintiff is entitled to recover from the defendant by reason of the breach of the contract is as follows:

Verdict as to value of warranty-deed lands. $4,000 00

Net value of tax-title lands after deduction. 4,135 4G

Tax certificates field fiy defendant and to fie assigned.... 116 60

Total . $8,252 06

Less purchase price. 3,000 00

Amount of plaintiff’s recovery.■. $5,252 06

As so modified, the judgment stands as entered July 11, 1907, as follows: Damages, $5,252.06; interest from April 2, 1900, to July 11, 1907, $2,292.53; costs as taxed, $631.76— total, $8,176.35.

By the Court.- — -Judgment modified, and affirmed as modified ; respondent to pay the costs on this appeal.

On September 29, 1908, a motion by appellant for a rehearing was denied and a motioii by respondent for a rehearing was dismissed.