St. Norbert College Foundation, Inc. v. McCormick
St. Norbert College Foundation, Inc. v. McCormick
Opinion of the Court
While the defendant in his brief on appeal lists eight issues, the last one of which he subdivides into six separate challenges to the judgment, we find the following to be dispositive.
LACK OF CONSIDERATION.
The agreement of the parties challenged here is their buy-sell agreement of October 8, 1965. By the terms of that contract, defendant agreed to sell and plaintiff agreed to buy certain shares of Proctor and Gamble stock. Defendant contends that such sales contract is not enforceable because it lacks consideration. The contract was under seal, so consideration is presumed.
EXISTENCE OF AN ENFORCEABLE CONTRACT BETWEEN THE PARTIES.
In the defendant’s view, the October 8 buy-sell agreement between the parties was not a contract at all, but “overall a promise to make a gift in the future, which is unenforceable.”
REFORMATION OF CONTRACT.
Having held that the October 8 buy-sell agreement between the plaintiff and the defendant to be a valid contract, we reach the defendant’s contention that the contract should be reformed to comply with the basic intentions of the parties.
REVOCATION OF THE TRUST.
Focusing upon the trust agreement between himself as grantor and himself as trustee, the defendant argues that he “revoked the trust agreement and pledge, notified plaintiff and made them a nullity.”
The trial court found that the trust was not revoked by the defendant grantor until after January 4, 1971. The defendant offered evidence of an earlier revocation of the trust agreement in compliance with its requirements for revocation. It is enough here to note that the trial court did not believe the evidence offered and its reasons for rejection of the claim of a trust revocation prior to January 2, 1971, were clearly stated in its
Our upholding the trial court’s finding of fact that the trust agreement was not revoked until after the date of sale, January 2, 1971, makes it unnecessary to consider what effect a timely revocation of the trust agreement would have on either the validity of the October 8 buy-sell agreement or the personal liability of McCormick on the agreement which he entered into as trustee.
RESCISSION OF THE CONTRACT.
As a final challenge to the validity of the October 8 buy-sell agreement, the defendant claims that “any agreement between the parties was canceled and rescinded.”
For the sake of completeness, we note the defendant’s objections to the trial court’s finding concerning the role and the testimony of Fountain, the defendant’s tax advisor, and Everson, the attorney present at the time of execution of the buy-sell agreement. On all issues raised, we affirm the trial court’s findings of fact and
By the Court. — Judgment affirmed.
Sec. 891.27, Stats. See also: Farley v. Salow, 67 Wis.2d 393, 402, 227 N.W.2d 76 (1976).
Rust v. Fitzhugh, 132 Wis. 549, 557, 112 N.W. 508 (1907), quoted with approval in Estate of Hatten, 233 Wis. 199, 216, 288 N.W. 278 (1940).
Estate of Hatten, supra, at 216, quoting from 7 Am. Jur., Bills and Notes, page 927, sec. 234.
Appellant’s Brief at 23.
Batavian Nat. Bank v. S & H, Inc., 3 Wis.2d 565, 569, 89 N.W.2d 309 (1958).
Milwaukee Cold Storage Co. v. York Corp., 3 Wis.2d 13, 24, 87 N.W.2d 505 (1958). See also: Lasker v. Patrovsky, 264 Wis. 589, 60 N.W.2d 336 (1953).
See: Fun-N-Fish, Inc. v. Parker, 10 Wis.2d 385, 103 N.W.2d 1 (1960).
Appellant’s Brief at 27.
Source v. Rinehart, 69 Wis.2d 631, 638, 230 N.W.2d 645 (1975).
Frantl Industries v. Maier Construction, Inc., 68 Wis.2d 590, 594, 229 N.W.2d 610 (1975), quoting from Touchett v. E. Z. Paintr Corp., 263 Wis. 626, 630, 58 N.W.2d 448, 59 N.W.2d 433 (1953).
Id. at 638, quoting from 17 C.J.S., Contracts, page 900, sec. 145 (1963).
Appellant’s Brief at 34.
Stueck v. Le Duc, 57 Wis.2d 735, 741, 205 N.W.2d 139 (1973), citing Milbauer v. Transport Employes’ Mut. Benefit Society, 56 Wis.2d 860, 862, 203 N.W.2d 135 (1973); Resseguie v. American Mut. Liability Ins. Co., 51 Wis.2d 92, 105, 186 N.W.2d 236 (1971); Weed v. Lepianka, 30 Wis.2d 198, 205, 140 N.W.2d 305 (1966); Mitchell v. Western Casualty & Surety Co., 30 Wis.2d 419, 141 N.W.2d 212 (1966).
See: Gates v. Avery, 112 Wis. 271, 276, 277, 87 N.W. 1091 (1901), quoted with approval in Arnold v. Randall, 121 Wis. 462, 468, 98 N.W. 239 (1904). See also: Taylor v. Davis, 110 U.S. 330, 334, 335 (1884); Bogert, Trusts and Trustees (2d ed. 1960), sec. 712, page 445; 3 Scott on Trusts (3d ed. 1967), sec. 262, pages 2221-2223.
Appellant’s Brief at 36.
Alexander Hamilton Institute v. Hart, 180 Wis. 90, 96, 192 N.W. 481 (1923).
Id. at 96. See also: Ewert v. Hammer, 212 Wis. 647, 250 N.W. 824 (1933); Deno v. Hersh, 158 Wis. 502, 149 N.W. 145 (1914); and Kellett v. Robie, 99 Wis. 303, 74 N.W. 781 (1898).
Dissenting Opinion
(dissenting). The trial court looked at each instrument and each isolated event in the history of the dealings between the parties and concluded that McCormick had a contractual commitment which he failed to keep. The trial court’s analysis is sound on its face, and the trial court’s conclusion inevitably follows from the analysis. I dissent, however, because upon reading the entire record and looking at the case in its entirety — instead of as a series of isolated events — the conclusion I reach is that the parties intended a gift — not a binding agreement.
Reference
- Full Case Name
- St. Norbert College Foundation, Inc., Plaintiff-Respondent, v. McCormick, Defendant-Appellant and Third-Party Plaintiff: Premonstratensian Fathers, Third-Party Defendant-Respondent
- Cited By
- 14 cases
- Status
- Published