#### Gates, Appellant, vs. Parmly and others, Respondents. Same, Respondent, vs. Same, Appellants.

*November 6, 1901*—

February *18, 1902.*

<1, 2) *Printed ease: Briefs.*(3) *Contracts: Rescission: Equity: Practice: Motions, when too Tate.*(4-9) *Evidence: Findings: Appeal and error: Subsequent appeal: Exceptions: Mandate on reversal, what is compliance therewith: Interest: Prejudicial error.*

1. The printing of indorsements, file marks and admissions of service, concerning which no question is raised on appeal, violates Supreme Court Rule VIII, which requires appellant to print a complete abstract or abridgment of *so much*of the record *as may be necessary*to a full understanding of the questions presented for decision.

2.' A brief containing many statements of alleged facts, contrary to the court’s findings, without any reference to the record to substantiate them, and which from their nature could not have been in the record, and containing statements disrespectful to opposite counsel and abusive of parties, violates Supreme Court Rule XXVII, and will be ordered stricken from the files.

3. Plaintiff’s application to the trial court for leave to rescind a land contract upon repaying the money he had received and to require the defendants to reconvey, made in an action brought to reform the contract and for other relief, comes too late, when no claim therefor was made until after the cause had been heard on appeal, followed by the completion of a trial before a referee.

4. Where conflicting testimony is ample to authorize the trial court in finding the aggregate value of a tract of land, as an entirety, at more than the value as found by a referee, the court’s finding in that respect will be confirmed.

*1485. The original purchase price oí land is a circumstance tending to show value, and is a proper item of evidence to he considered hy the trial court.

6. Where a vendor, in a suit to reform an improvident land contract, obtained a judgment, and the supreme court on appeal’ therefrom directed an accounting and that when a final balance was struck he might have judgment *without interest,*such mandate governs the parties and all courts in any subsequent litigation.

7. A finding to which no exception has been made cannot be reviewed on appeal'. ,

8. A vendor of lands sued to reform the contract, to collect the-unpaid purchase price, and for other relief. On appeal the supreme court directed defendants to quitclaim back certain tracts, title to which was defective, and that plaintiff be charged with the value thereof. On a retrial, such lands having in the meanwhile been sold, defendants, in accordance with such mandate, tendered a quitclaim deed but failed to make full disclosures as to the facts relative to such sale. *Beld,*that defendants having voluntarily disenabled themselves from performing such mandate, and having failed to make full disclosures so as to enable the court to adjust the equities thus arising, were not entitled to have the value of such lands deducted from the purchase price.

9. In such action where the items of credit to the plaintiff on which no interest was allowed substantially offset items of credit to defendants upon which interest was disallowed, and the trial court in its findings of fact allowed to defendants amounts1 paid for taxes, etc., on lands the title to which had failed, but without interest, because interest was not allowed plaintiff on the value of timber sold by defendants from the same lands, such offset of interest was a fair and equitable adjustment between the parties, and the. failure of the court to carry such adjustment into the judgment is prejudicial error.

Appeals from a judgment of the circuit court for Clark county: W. 0. SilveRThobn, Judge.

*Modified and affirmed.*

This case came to this court in 1896, and may be found reported in 93 Wis. 294. The judgment was reversed, and the cause was remanded, with directions to take a reference as therein prescribed, and to ascertain the state of the account between the parties under the contract set out in the *149'Complaint. The opinion, determines certain of the claims made by defendants, and leaves to be ascertained what sum should be deducted from the amount due the plaintiff for failure of title to certain lands, a list of which accompanied the mandate. The facts of this litigation sufficiently appear in the former report. Upon the return of the record to the lower court a reference was granted, and a hearing had before a referee. Findings were made which were unsatisfactory to the plaintiff, and upon his application the case was re-referred, and further testimony taken. The result was that the referee increased the aggregate valué of all the land from ■$39,107 to $40,947, leaving his other findings substantially as before. Exceptions to the findings were filed by plaintiff, and upon the. hearing before the court the findings were modified to some extent, as herein noted.

The court’s findings were, in effect, as follows: (T) The aggregate value of the entire tract of land was fixed at ;$45,000, instead of $40,947, as found by the referee. (2) 'The total value of the lands in the “Defective list,” including ten forties known as the “Atlee lands,” was $6,049, the same as found by the referee. (3) Of the whole value of the lands •embraced in the suit, 13.4422 per cent, were defective in title, instead of 14.7727 per cent., found'by the referee. (4) The deduction to be made from the $45,000 purchase price on account of defective titles was $6,049, instead of $6,647.72, as found by the referee, with interest for six years, amounting in all to $8,445.90, instead of $9,282.03, as stated in the referee’s report. (5) On the trial before the referee the defendants tendered plaintiff .a quitclaim deed of lands the title to which had been found defective, and covering the lands which should be so quitclaimed, pursuant to the directions of the supreme court in this cause. (6) Defendants selected S. E. S. E. 30 — 27—4 as the extra forty to make up the 800 acres mentioned in the former opinion. (7) De^ *150fendants bad sold timber on certain of. the lands ordered' quitclaimed:

Nov. 27, 1894, to McTaggart. $ 60

Dec. 27, 1895, to Procfc.i- 30

July 9, 1892, to John *&*Steinert. 568

Dec. 1, 1895, to Bucher... 85

Jau. 15, 1897, to Smith *&*Johnson..-. 56

Oct. 10, 1896, to Smith *&*Johnson. 144

Total . ?943

—(8) Expense of estimating lands from wbicb timber was. sold, mentioned in seventh finding, was.$13.20. (9) Of the lands in the “Defective list,” the “Atlee lands,” and S. E. S. W. 34-25-2, and lot 7, *27-24-2,*have been sold by the defendants; but the time when sold, and the amount received therefor, do not appear dearly in the evidence., (10) The title to seven forties (describing them) was perfected by defendants at an expense to them of $78.08. . (11) .That defendants paid taxes on lands to which title was defective amounting to $670.87 for principal, with interest “(amounting to $966.03, as stated in the referee’s report)”. (12) Defendants paid for tax-deed fees, etc., including interest to October 1, 1897, $34.39;

As conclusions of law the court found: (1) The plaintiff ■was entitled to recover the balance of unpaid purchase money for the lands, $22,500, without interest, and $187.37 redemption money received by the defendants for taxes on the “Atlee lands,” reduced by the total amount of the several items found in favor of defendants. (2) Plaintiff was further entitled to the $943 received by defendants for timber sold, mentioned in the seventh finding, but without interest, as defendants were expending about an equal amount for taxes, as found in the eleventh finding. (3) That defendants were entitled to have credit for the value of the lands in the defective list, as stated in finding 2, amounting to $6,049, principal, and interest, $2,185.18,— in all, to $8,445.90. (Note. The figures *151as to the amount of interest are wrong. The amount should hay© been $2,396.90.) (4) Defendants were entitled to allowance of $13.20 mentioned in eighth finding. (5) The plaintiff was not entitled to anything upon the ninth finding, for want of evidence. (6) Defendants were entitled to an allowance of $78.08 as stated in the tenth finding, but without interest, because of mutual expenditures mentioned. (7) Defendants were entitled to the allowance of $679.87, without interest, for taxes, etc., mentioned in finding 11. Interest was not allowed on this item because no interest was allowed on the amount due plaintiff mentioned in finding 2. (Note. In the statement made by the court in conclusion 12, hereinafter referred to, this item was allowed at $966.03, which includes interest amounting to $286.16.) (8) Defendants are entitled to the allowance of $34.39 as mentioned in finding 8. (9) Defendants are allowed, as directed by the supreme court, $5,080 on defect in .titles under the 800-acre clause in the contract, with $859.35, interest from November 1, 1890, to April 1, 1893, at seven per cent, (two.years and five months), and also $1,092.20, interest at six per cent, to November 1, 1896 (or three years and seven months), being interest for six years in all; total principal and interest being $7,031.55.- (Note. The court evidently made a mistake as to the time from which interest was to be computed. As shown by the former decision, plaintiff was to have until August 15, 1889, to make title to 'the land. Interest should have been computed from that date to April 1, 1893, the time the rate was changed by law, at seven per cent, for three years seven and one-half months, and for two years four and one-half months at six per cent., to make the full period of six years. This makes a difference of $61.37 in favor of defendants.) (10) The defendants are to be allowed, as directed by the supreme court, $4,000 for timber sold by plaintiff to the Northwestern Lumber Company, together with $676.65, interest from November 1, 1890, to April 1, 1893 *152(two years and five months), at seven per cent., and alsb $860 interest from April 1, 1893, to November 1, 1896 (three years and seven months), at six per cent., being interest in all for six *years;*principal and interest being $5,536.65. (11) Defendants should be allowed $206.93, as directed by the supreme court, paid to redeem lands from tax sale, without interest. (12) “That the computation upon which the amount of the judgment is made stands as follows:

“Credits Allowed Plaintiff.

Balance of purchase money.$22,500 00

Allowance for amount received by defendants on the Atlee

lands on settlement . 120 36

Allowance for timber sold from lands on “Defective list” 943 00

Total allowance to plaintiff.$23,563 36

For principal and int. allowed defts. on “Defective list”.. $8,445 90 For item allowed defts. under fourth conclusion of law.... 13 20

For item allowed defts. under sixth conclusion of law.... 78 08

For item allowed defts. under seventh conclusion of law.. 966 03

For item allowed defts. under twelfth conclusion of law [should have been eighth].:. 34 39

For item allowed defts. under ninth conclusion of law.... 7,031 55

For item allowed defts. under tenth conclusion of law.5,536 65

For item allowed defts. under eleventh conclusion of law.. 206 93

Total allowance to defendants.$22,312 73

Balance in favor of plaintiff. $1,250 63”

—(13) The quitclaim deed tendered by defendants was sufficient. (14) Plaintiff was entitled to judgment for the sum of $1,250.63, without interest, and without allowance of costs to either party, except that plaintiff was to pay the costs of reference.

The plaintiff filed exceptions to the first, second, fourth, and ninth findings of fact, and to all of the conclusions of law. The defendants excepted to the first, second, third, fourth, and seventh findings of fact, and to all of the conclusions of law, except the fourth, fifth, ninth, and thirteenth.

*153Prior to the making of tbe findings by tbe court tbe plaintiff made a motion to be permitted to rescind tbe contract involved in tbe suit, and that tbe defendants be required to -reconvey all lands conveyed to them by tbe plaintiff. Tbis .■motion was denied.

Judgment was entered as directed, and both parties bave .•appealed,

*R. J. MacBride*and *Rublee A. Cole,*for tbe plaintiff.

*8. M. Marsh*and *L. M. Sturdevant,*for tbe defendants.

Tbe following opinion was filed November 29, 1901:

BakdeeN, J.

1. We bave been greatly embarrassed and •our labors bave been increased by tbe printing of a vast .amount of irrelevant matter in the case. Tbe printed matter ■covers nearly 500 pages, and contains at least 150 pages of rubbish that bas no place in tbe printed case. Tbe complaint, tbe findings on tbe former trial and exceptions thereto, 'the opinion of the" trial court, the first judgment, and many -other papers are set out at length. Counsel bave, with great industry and fidelity, printed tbe indorsements, file marks, .and admissions of service on tbe back of each paper, although no question bas been raised with reference thereto. They ••serve no purpose but to incumber tbe record and weary tbe -court. Rule VIII requires tbe appellant to print a complete abstract or abridgment of *so much*of'the record *"as may be ■necessary*to a full understanding of tbe questions presented ■for decision.” Tbis case furnishes a most flagrant violation -of that rule.

2. Upon the argument the plaintiff asked leave to file a ’brief prepared by himself, tbe better to aid tbe court to a -solution of tbe questions of fact presented. We then directed ■that it might be filed with tbe clerk, subject to future inspection. We find that it in no way conforms to tbe rules. It -contains many statements of alleged fact contrary to tbe •court’s findings, without any reference to tbe record to sub*154stantiate them, and which, from their very nature, could not have been therein. • But, worst of all, it contains many statements disrespectful to opposite counsel and abusive of defendants. The latter are charged with producing and using false testimony. The attorneys are accused of “juggling with the abstracts” and keeping them from the attention of the court, and using others which showed defective titles. One of the attorneys, a most honored member of this bar, is said to have been allowed to “swipe four forties for practically nothing as a consideration,” and another is charged with’ “sliding in descriptions or sliding them out” while his associate was arguing the case. Charges of this kind cannot be tolerated. They are contrary to Rule XXVTI, and the clerk is directed to strike the brief from the files.

8. Prior to the filing of findings by the trial court, but after the completion of the hearing by the referee, the plaintiff made a motion to be allowed to rescind the contract in suit upon repaying the money he had received, and requiring the defendants to reconvey the lands conveyed to them thereunder. The court denied the motion, and, except for the fact that it is argued with some seriousness in the brief of Mr! Cole that this ruling was erroneous, we should pass it without comment. On the former hearing this court said:

> “The defendants cannot now be allowed to rescind the contract. They made no case in their answer and no claim in it 'for rescission.”

On the motion for the rehearing the defendants urged a rescission of the contract, and were then anxious to secure it. After a 'trial before the referee, and the lapse of time, the position of the parties has become reversed. The plaintiff is the one now seeking a rescission. Ho more appropriate answer can be made to him than was given the defendants. He made no claim for a rescission in his complaint, and cannot now be heard to urge claims for relief on that ground. The situation of the parties and the conditions surrounding *155them have entirely changed. The application for sncb relief came entirely too late.

4. Under the former decision in this court, the only matter left open was'to ascertain the relative value of which the lands in the so-called “Defective list,” to which title had failed, bore to the value of the entire tract conveyed, and to-mate an accounting of the matters properly growing out of the same. Pursuant to the suggestion therein made, the lower court granted a reference, at which both parties appeared and offered testimony. The referee made findings which were-unsatisfactory to plaintiff. He made application for and obtained an order opening the case for further testimony. The referee adhered to his first findings, except that he increased the aggregate value, of the entire tract of land some $1,840, the new valuation being placed at $40,947. Upon review of his findings by the court, certain modifications of the referee’s findings were made as noted in the statement; the most important being an increase in the referee’s valuation above mentioned to $45,000, which was equivalent to the original purchase price of the land. Both parties complain of this change. The plaintiff insists the value should have been increased to at least $60,000, while the defendants claim there is no warrant in the testimony for changing the figures of the referee.' The controversy arises chiefly over the values that ought to be placed upon about 184 forties of land which two of defendants’ witnesses, who had made a personal examination, classed as worthless. On the first hearing the referee apparently considered them as valueless. On the second hearing he valued them at $10 per forty, which accounts for the changes in his figures. As near as we can make out from the rather haphazard condition of the testimony, several witnesses for plaintiff put the value of these lands at from fifty cents to as high as $2.50 per acre. It is a matter of great difficulty to sift out and apply the testimony to any given forty and we •are given very little assistance in the briefs of counsel. The *156referee seems to have felt bound by the Huntly estimate as to condition and value. There was, however, quite a volume of testimony, somewhat general in its nature, placing values considerably in excess of the figures on this estimate. The original purchase price of the land was a circumstance tending to show values, and was proper to be considered. Without going into particulars,- we think there was ample testimony to authorize the court in increasing the aggregate value of the entire tract to at least the figure fixed by him. We are not convinced that such value should be increased, and therefore confirm the finding in this respect.

5. The plaintiff now claims that he should have been allowed interest on the amount found his due from the date of the filing of the former mandate in this action. The plaintiff came into a court of equity for relief, when he had none at law. He had made an imprudent contract, and admitted in his complaint that he had not completed his contract “to its fullest extent.” He had stipulated in his contract that the balance of the purchase price of the land should not bear interest until he had furnished an abstract showing title as required thereby. The title to a large number of tracts' had failed, and performance on his part was practically impossible. In a court of law he had no remedy. He could not have collected a dollar of the purchase price unpaid. He sought the intervention of a court of equity, and on the former hearing it was said that when a final balance was struck he might have judgment *without interest.*We cannot now revise that judgment. As it was there announced, so must it stand. That fiat must govern the parties and this court in all matters involved in this and any subsequent litigation.

6. The plaintiff attacks the value placed by the referee and court on the lands included in the so-called “Defective list,” the title to which failed. We see no reason for disturbing the conclusion reached, by them, except in the particulars hereinafter mentioned. The ten forties known as the “Atlee *157lands” were disposed of by the former opinion. The only thing the lower court had to do was to ascertain their value. While it was said that the defendants should quitclaim h> plaintiff the lands in the defective list, yef that must he considered in connection with what was said by the court with relation to these very lands. In 93 Wis. 319, it is said:

> “Atlee brought an action to recover the lands, and it was compromised by Parmly, trustee, quitclaiming the lands to him for $184.37, while acting in good faith on the theory,, 'induced by the plaintiff’s conduct, that the title was bad.”

The defendants were to be charged with $184.37 they received, less $64.01 of redemption money drawn and retained by the plaintiff. The theory upon which plaintiff was to be-charged with the value of these lands was that they were an. essential part of the entire' tract, the title to which failed the quitclaim by defendants having been induced by the plaintiff’s conduct, and given in compromise of the pending, suit. In view of what was said in the former opinion, we cannot believe that it was intended that defendants were to go through the empty ceremony of quitclaiming these lands-to plaintiff, when they had been induced by him to part with whatever interest they had to the original owner. There is, however, another matter in this connection which seems to-have been overlooked. As already stated, the former mandate required the defendants to quitclaim to plaintiff the' lands in the defective list. The quitclaim as to the “Atlee lands” has already been disposed of. As to the other lands, the court finds by the fifth finding that such requirement has. been fulfilled. That finding has not been excepted to by the' plaintiff, and cannot he reviewed. It must stand as a verity. But in finding 9 the court declares that the S. E. S. W. 34— 25 — 2 and lot 7, 27 — 24—2 had been sold by defendants; but the time when, or the amount received therefor, was-not clearly shown by the evidence. Both of these tracts were-included in the list of defective titles; the former being *158¡valued at $120, and the latter at $488. To get equity, the defendants were bonnd to Bo equity. The claim to very many of these lands was based upon tax titles. The requirement to reconvey by quitclaim was undoubtedly based upon the idea that some interest, more or less valuable, had been passed by the original deed. Whatever that was, the plaintiff was entitled to it when allowance was made for the value of the lands in deduction from the original purchase price. If defendants had sold these lands, or any parts of them, and had put it beyond their power to comply with the mandate of the court, it was their duty to make full discovery of the facts, so that the court could adjust the equities on some other basis. This they failed to do, and yet they were given the full value of these lands, as stated, with six years’ interest. Having sold the interest they were required to reconvey in the two tracts mentioned, and having failed'' to advise the court of the profit realized, they are in no position now to exact the full “pound of flesh” from their adversary. By the judgment of the court they get not only the original value of the land deducted from the amount they were to pay, but also whatever they received from the sale. Having voluntarily disenabled themselves from performing the court’s mandate, and having failed to make full disclosure with reference thereto, we do not think they should, be allowed to- include the value of these parcels in the defective list. The value of the lands in the defective list should therefor be but $5,441, instead of $6,049. This item of the account would stand as follows, computing interest at seven per cent, for three years and seven and one-half months, and at six per cent, for two years, four and one-half months:

> Principal . $5,441 00

> Interest at seven per cent. 1,380 66

> Interest at six per cent. 775 32

> Total . $7,596 98

’ — making a difference in favor of plaintiff of $848.92.

*1597. Under tbe terms of the contract as construed in the former decision (93 Wis. 317), the defendants were entitled to deductions on account of defective title to 800 acres mentioned in the contract, in addition to the lands above mentioned, of the value of $5,080. In the ninth conclusion of law the court allowed this item, hut commenced his computation of interest from November 1, 1890, when the date should have been August 15, 1889, the time when plaintiff was under contract to furnish title. The interest should have been allowed for a period of six years, — three years seven and one-half months at seven per cent., and two years four and one-half months at six per cent. This makes a difference of $61.37 in favor of defendants. The principal and interest should have been $7,092.92, instead of $7,031.55.

8. In the eleventh finding of fact the court finds that defendants had paid $679.87 for taxes, etc., on lands the title to which had failed, which, with interest, amounted to $966.03. In the seventh conclusion of law he says the sum first mentioned should be allowed without interest, because interest was not allowed plaintiff on the value of the timber sold by defendants on these same lands; yet when he comes to make up his statement for judgment, in conclusion 12, he allows the item at $966.03, which includes $286.16, interest to the date of the referee’s first report. The idea of the court seems to have first been that, as there were items of credit to plaintiff amounting to $1,063.36 upon which no interest was allowed, and items of credit to defendants amounting to $1,012.47 upon which he disallowed interest, it would be a fair offset. Had he carried this conclusion into the judgment, there would have been no reasonable ground for complaint. As to these items, one party was as justly entitled to interest as the other, and the offset of one against the other was, as the court said, “a fair and equitable adjustment” between the parties. His failure to carry this ad*160justment into' tbe judgment resulted to tbe prejudice of tbe plaintiff in tbe amount of $286.16.

9.Tbe former opinion beld that defendant should be allowed credit for $4,000 for timber 'cut from tbe lands conveyed by tbe Northwestern Lumber Company, with interest from tbe time tbe last sum was paid plaintiff by tbe company. In conclusion 10 tbe court allowed interest for sis years from November 1, 1890. Tbe defendants insist that such allowance of interest should have been to tbe date of tbe findings. Tbe writer of this opinion believes tbe trial court’s view was right, but tbe other members of tbe court are of opinion that a proper construction of tbe former decision requires the adoption of the defendants’ contention. This necessitates a modification of tbe allowance as follows:

> Principal sum . $4,000 00

> Interest from November 1, 1890, to April 1, 1893, two years and five months, at seven per cent.. 676 65

> Interest from April 1, 1893, to November 23, 1900, seven years, seven months, twenty-two days, at six per cent . 1,834 65

> Total .'. $6,511 30

> Amount allowed by the court. 5,536 65

> Difference in favor of defendants. $974 65

10. Tbe court directed tbe entry of judgment for plaintiff without costs to either party, except that plaintiff was to pay tbe costs of tbe reference. We confirm that conclusion, without comment. There are other contentions in tbe case, but we do not regard them of sufficient importance to re1quire discussion. In so far as they attack tbe conclusion of tbe court below, they must be considered overruled.

11. Tbe views hereinbefore expressed necessitate a slight modification of tbe judgment. Tbe total credits herein found for plaintiff are $1,135.08. Defendants’ credits are $1,036.02, making a net balance in favor of plaintiff of $99.06. Tbe judgment will be modified by adding tbe *161amoRint to tbe plaintiff’s recovery as of tb© date, when entered. \

*By the Court.*— Tbe judgment is modified as directed in tbe opinion, and as so modified is affirmed. No costs are allowed, except that tbe defendants must pay tbe fees of tbe clerk of this court, and for .100 pages of tbe printed case.

Both parties moved for a rebearing.

Eor tbe plaintiff there was a brief by *Rublee A. Cole,*and for tbe defendants there was a brief by *8. M. Marsh*and *L. M. Sturdevani.*

On February 18, 1902, the plaintiff’s motion was deemed waived, and tbe defendants’ motion denied.