Carlock v. Johnson

Marshall, J.

It is conceded that unless tbe contract was sufficient to satisfy tbe statute of frauds, it was not binding on respondent and tbe judgment is right. In that case performance could not have been judicially enforced, nor damages be recovered for a breach.

*52 Counsel for appellant seem to further concede that the clause relating to a future agreement as to the amount to he paid for releases was a material part of the contract, but contend that the agreement contemplated that such clause should be embodied in the mortgage and the amount for releases be agreed upon from time to time as lots were sold and that, in case of inability to then agree, the matter would be a proper subject for judicial interference.

We cannot agree that the parties contemplated leaving the determination to be made for the releases of lots to wait upon sales. We do not see any ambiguity in the language “I will stipulate in the mortgage for the release of any given lot, or lots, upon payment to me of such a sum as may be hereinafter agreed upon by us as being equitable.” It is conceded that the word “hereinafter” was inadvertently used for “hereafter.” That points quite unmistakably, in view of the context, it is thought, to the interval between the making of the paper and the closing up óf the deal. If the idea had been that the agreement should abide the time of sales, the word “then” or some similar word would have been used indicating such idea instead of “hereafter.”

That the parties to the paper understood it as indicated is evident from their having endeavored to agree upon the terms of the stipulation before the time for closing up the deal. Had they thought otherwise, there would have been an offer to embody in the mortgage a provision accordingly, nothing of that kind seems to have occurred. Appellant submitted a proposition in regard to the amount to be paid for leases and offered to have the papers prepared for the conveyance and mortgage, upon respondent notifying him of his consent thereto.

Thus it seems clear that the minds of the parties never met upon the particular matter which was a vital element in the contract. When respondent proposed to call the trade off because of the failure to settle upon the terms of the stipula *53 tion, it does not appear that any complaint was made that the time had not arrived requiring such settlement. Appellant, by his conduct, seems to have acquiesced from the first in the view that the agreement as to the amounts to be paid for releases was a condition precedent to a completion of the contract.

Some complaint is made because the court permitted evidence of the circumstances characterizing the making of the contract and the treatment of it thereafter. That evidence was proper. While evidence is inadmissible to contradict or vary the terms of a written contract, in case of ambiguity therein the circumstances of its making and the construction put upon it by the parties by their acts may be shown for the purpose of clearing up the obscurity. There was a dispute here as to the meaning of the language used by the parties. So, at the best the matter can be considered for appellant, there is some obscurity though we are inclined to the view that it is pretty plain. If there be obscurity, the evidence was proper. If there be not, the evidence was not prejudicial. Klueter v. Joseph Schlitz R. Co. 143 Wis. 347 , 128 N. W. 43 .

It does not seem that Joy v. St. Louis, 138 U. S. 1 , 11 Sup. Ct. 243, applies here. The court there dealt with an agreement that third parties should have certain privileges “upon such terms and for such fair and equitable compensation . . . as may be agreed upon by such companies.” A subsequent agreement by such companies, after completion of the contract and as occasion might arise therefor, was plainly contemplated. Not so here. It seems that the case is quite distinguishable from this one.

The result is that a material part of the contract in question was never fully agreed upon. It was a matter which the parties themselves were to settle as a condition precedent to a complete transaction relating to the sale of the land, and, therefore, it was not binding on respondent under the *54 logic of Cameron v. Austin, 65 Wis. 652 , 27 N. W. 622 ; Harney v. Burhans, 91 Wis. 348 , 64 N. W. 1031 ; Buck v. Pond, 126 Wis. 382 , 105 N. W. 909 .

By the Court. — The judgment is affirmed.