Hedstrom v. Schaumann

Vinje, J.

Whether the acceptance by defendant of the agreement set out in the statement of facts amounted to a contract on his part to carry out one or the other of the alternative offers therein made, which could be enforced by the Thomas Nurseries, Inc., or amounted only to an acceptance of two options either of which he could or need not carry out, he nevertheless received a valuable consideration for his promise to pay the $100 to plaintiff. He had paid $900 on his contract and by its terms it was defaulted. As a consideration for a reinstatement 'of the contract and an extension of the time of payment he was given the specified options and was to receive credit on his contract for the $100 to be paid to plaintiff. There is no dispute but that if defendant owed plaintiff anything it is the full sum of $100 and interest.

It will be noticed that both options provide for the payment to plaintiff of the $100. The fact that defendant did not see fit to avail himself of the benefits of his contract cannot affect plaintiff’s right to recover. He did not, as the circuit court seemed to think, promise to pay it on condition that he availed himself of the contract. The acceptance is absolute. There is no condition expressed and none can be implied. He received a valuable consideration for his promise, to wit, the continuing in force of a defaulted contract and the application of plaintiff’s $100 payment on his own contract if carried out. It was relied upon by plaintiff and consented to by the Thomas Nurseries, Inc., and that amounts to a valid novation. T. W. Stevenson Co. *357 v. Peterson, 163 Wis. 258 , 157 N. W. 750 . It is true that the consent of plaintiff to the substitution of defendant as his debtor was not embodied in the written agreement, but that may be shown by parol or. by circumstances and the conduct of the parties. T. W. Stevenson Co. v. Peterson, supra. Here there was no material dispute about the fact that plaintiff accepted defendant as his debtor and released the Thomas Nurseries, Inc. The giving of the promissory note, in defendant’s handwriting, though void by reason of its execution on Sunday, shows that such was the understanding. It recites that it was for a land transaction, and the subsequent oral agreements made on secular days to pay this sum in a sense ratify the Sunday note though it is not made the cause of action.

The Thomas Nurseries, Inc., parted with a valuable consideration in reinstating defendant’s defaulted contract and giving the options. The defendant received this consideration, and because of it and the credit of $100 he was to receive upon his own contract he agreed to pay plaintiff the $100. As before stated, the fact that he later concluded not to carry out either option did not destroy the consideration he received nor the promise that his acceptance constituted, especially in view of the subsequent conduct of the parties showing a reliance upon the promise on the part of plaintiff and an acknowledgment thereof on the part of defendant.

By the Court. — Judgment reversed, and cause remanded with directions to affirm the judgment of the civil court.

Rosenberry, Esci-iweiler, and Owen, JJ., dissent.