COURT OF APPEALS DECISION DATED AND RELEASED October 15, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2714
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
MARIAN STANISZ and
ANNA WASILEWSKA,
Plaintiffs-Respondents,
v.
IRENE HASTINGS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Irene Hastings appeals from a judgment granting
specific performance on a contract for the sale of real property, and awarding
$20,343.96 in damages to Marian Stanisz and Anna Wasilewska. Hastings argues that the contract entered
into between the parties contained an inadequate description of the property to
be purchased and, therefore, did not satisfy the statute of frauds. Hastings also argues that the $20,343.96
awarded as damages was excessive and an abuse of discretion. We affirm in part and reverse in part.
Hastings owned 43.5
contiguous acres in the City of Franklin.
In the fall of 1993, Hastings advertised the sale of two of those
acres. On October 10, 1993, Stanisz and
Wasilewska offered to purchase the two acres.
Their initial offer to purchase, for $83,000, described the property as
“10642 South 92nd Street, in the City of Franklin, County of Milwaukee,
Wisconsin more particularly described as single-family home, approximately 2
acres land, legal description to follow” and was subject to a financing
contingency that Stanisz and Wasilewska obtain by November 1, 1993, a
conventional, fixed rate 30-year mortgage at an interest rate not to exceed
7.25%. After receiving no response from
Hastings, Stanisz and Wasilewska submitted two counter-offers, eventually
increasing their offer to $91,000. In
response to Stanisz and Wasilewska's offer to purchase and counter-offers,
Hastings submitted a “multiple counter-offer” dated October 27, 1993, granting
Stanisz and Wasilewska until November 3, 1993, to accept the same. The “multiple counter-offer” was accepted by
Stanisz and Wasilewska on November 3, 1993, and was confirmed by Hastings
on November 5, 1993. Subsequent to
the acceptance of the “multiple counter-offer,” Hastings ordered a survey and
appraisal report of the property. The
certified survey map indicated that the parcel in question was approximately
2.2907 acres and had 200 feet of frontage on South 92nd Street. The appraisal report listed the property as
being 99,781 square feet—2.2907 acres.
The “multiple counter-offer”
incorporated by reference the terms in the offer to purchase that included the
financing contingency. On December 17,
1993, Stanisz and Wasilewska obtained a $81,900 loan with a fixed rate at 7.375
percent interest for thirty years.
Hastings attempted to
cancel that transaction in March 1994.
Stanisz and Wasilewska then brought the present action for specific
performance of the contract. At the
time of trial, the interest rates had gone up one percent, to 8.375
percent. During trial, testimony was
offered by Hastings's son James, Stanisz and Wasilewska. James testified that the survey accurately
depicted the land that Hastings intended to sell. He also described the property as being surrounded by corn fields
on two sides, a street in front and an adjacent non-owned property on the
remaining side. Stanisz testified that
the survey reflected what was shown to him by Hastings when Stanisz initially
viewed the property. Wasilewska
testified that Hastings told her that the property included the entire area
around the house and outbuildings that was not a corn field.
The trial court granted
specific performance, concluding that:
The court has no hesitancy in holding that the
parties understood exactly what was to be conveyed, the conditions under which
it was to be conveyed, and the seller, for whatever reason, determined that she
would not proceed with the transaction and thereby breached the terms of the
contract ....
The
trial court also awarded $20,343.96 as damages representing the one percent
difference in interest rates between the time Stanisz and Wasilewska received
their mortgage commitment and the time of trial.
Hastings argues that the
contract between the parties did not satisfy the statute of frauds because it
did not contain an adequate description of the property to be sold. A contract for the sale of real estate that
does not conform to the statute of frauds is void and a nullity. Bratt v. Peterson, 31 Wis.2d
447, 452, 143 N.W.2d 538, 540 (1966).
The statute of frauds, as codified at § 706.02(1)(b), Stats., provides:
Formal requisites. (1) Transactions under s. 706.01
(1) shall not be valid unless evidenced by a conveyance which:
....
(b) Identifies the land.
To
comply with the statute of frauds, the contract must be reasonably definite as
to the property conveyed. Stuesser
v. Ebel, 19 Wis.2d 591, 593, 120 N.W.2d 679, 681 (1963). A general description of the land that is
the subject of the contract is sufficient, and parol evidence may be admitted
to provide a more particular description.
See id., 19 Wis.2d at 594, 120 N.W.2d at 681. This is an established exception to the
general rule that testimony is inadmissible for the purpose of proving the
terms of a contract for the sale of an interest in land, which the statute of
frauds requires to be in writing. See
O'Connor Oil Corp. v. Warber, 30 Wis.2d 638, 642, 141 N.W.2d 881,
883 (1966). “These criteria are used in
determining the sufficiency” of the contract.
Zapuchlak v. Hucal, 82 Wis.2d 184, 192, 262 N.W.2d 514,
518 (1978).
“The question of whether
the description contained” in the contract, “together with properly admitted
parol evidence, fulfills these criteria is a mixed question of law and
fact.” Id. “The question of the application of a
description to its proper subject matter” is a question of fact; “[t]he
question of the identity of the location is always one of fact,” but the
“construction of the terms used in a deed aside from extraneous evidence, is
for the court.” Id. The trial court's conclusion, therefore,
that the transaction satisfied the statute of frauds “will not be reversed on
review unless it is against the great weight and clear preponderance of the
evidence.” Id.
The trial court found
that the initial offer to purchase identified the subject matter of the
contract as property located at 10642 South 92nd Street in the City of
Franklin, County of Milwaukee, Wisconsin, consisting of two acres more or less. The “multiple counter-offer,” which
ultimately created the binding contract between the parties, indicated that it
was for the purchase of the same real estate referred to in the original offer
to purchase. The “multiple
counter-offer” had a provision requiring that a survey be completed to indicate
a more definite legal description of the land.
The survey was completed according to the deadlines set by Hastings and
identified the property as 2.2907 acres with 200 feet of frontage on South 92nd
Street. Further, testimony from both
parties indicated that the boundaries of the property for sale were understood
by Hastings, Stanisz and Wasilewska.
Also, an appraisal report gave the exact measurement of the property in
question. In light of this parol
evidence, the trial court properly found that the evidence afforded a
reasonable means of identifying the property in question. The description was, therefore, sufficient
to satisfy the statute of frauds.
Hastings also argues
that Stanisz and Wasilewska failed to meet a financing deadline and, therefore,
there was no valid agreement between the parties. Although the original offer to purchase indicated that Stanisz
and Wasilewska were required to obtain a financing commitment by November 1, 1993,
the “multiple counter-offer” was not even made until November 3, 1993. This extended the financing deadline. Further, Stanisz and Wasilewska received a
mortgage commitment on December 17, 1993, and Hastings did not attempt to
rescind the sale until March 1994.
Hastings's argument based on the financing contingency is without merit.
Finally, Hastings argues
that the trial court misused its discretion in awarding $20,343.96 in
damages. According to the trial court,
the $20,343.96 represented the difference between the amount of the mortgage
interest Stanisz and Wasilewska would have paid at the time of the trial
compared to the amount of interest they would have paid had the transaction
closed under the mortgage commitment they received. As noted, the mortgage rate at the time of trial was one percent
higher than at the time Stanisz and Wasilewska received their mortgage
commitment. In awarding Stanisz and
Wasilewska $20,343.96, the trial court reasoned that they should not have to
bear the one percent differential in interest rates because they were willing
and able to proceed with the transaction and Hastings was not.
The parties tell us that
the property has not yet been conveyed to Stanisz and Wasilewska. The trial court's $20,343.96 award
representing the interest- rate differential was, therefore, premature. See Capitol Indem. Corp. v.
Reasbeck, 166 Wis.2d 332, 338, 479 N.W.2d 247, 249 (1991) (an award of
damages that has not been or may never be incurred is premature). We reverse that portion of the judgment
awarding damages based on the interest-rate differential, and remand this
matter to the trial court to retain jurisdiction over this case for a
reasonable amount of time to permit the property to be conveyed. Following conveyance and on Stanisz and
Wasilewska's motion and on notice, the trial court shall calculate the damages
attributable to the interest-rate differential and enter an amended judgment
thereon.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.