The plaintiffs Joel Peterson and his wife, Josephine Peterson, commenced this action on November 30, 1946, to reform the description of the real estate in a certain contract entered into between the parties and for a decree of specific performance of the contract as reformed. The defendants Frank Eberl and Margaret M. Eberl, his wife, answered the plaintiffs' complaint, denied the formal allegations thereof, and alleged that the agreement between the parties contained the following provision:
"Should the seller [defendants] be unable to carry out this agreement by reason of a valid or legal defect in title which the buyer is unwilling to waive, the deposit hereunder' shall be returned to the buyer;"
that the buyer refused to waive the defects in title, failed to close the deal on or before June 5, 1946, in accordance with *Page 326 the terms of the agreement; that the transaction was contingent upon the plaintiffs being able to procure a G.I. loan of $10,000, which the plaintiffs were unable to do; that the defendants returned to the plaintiffs their deposit of $100 and rescinded the agreement between the parties.
After stating the relationship of the parties, their places of residence, and that the defendants were the joint owners in fee of the premises described in the contract, and the details relating to the execution and delivery of the contract, as to which facts there is no dispute, the court found:
"By the mistake and inadvertence of the scrivener, and the mutual mistake of the parties, said contract was incorrectly drawn and executed in that the west one (1) foot of said lot No. one (1) was omitted from the description of the premises actually sold and purchased by the parties, the defendant sellers owning no other part of said lot No. one (1)."
That the plaintiff is a veteran of World War II and after April 5, 1946, applied to the Veterans Administration of the United States for a so-called G.I. loan upon said premises. After the making of its appraisal of said premises of $10,000 on April 10, 1946, said Veterans Administration on May 23, 1946, duly issued a certificate of eligibility to the plaintiff.
The court further found that on said May 23, 1946, and pursuant to plaintiffs' application made without delay and the negotiations had since said April 5, 1946, the Welfare Building Loan Association, named in said contract, granted to plaintiffs a loan in the sum of $9,000, and accepted from them their note secured by mortgage upon the premises in suit, executed and delivered by said plaintiffs on said May 23, 1946, and recorded in the office of the register of deeds of Milwaukee county. That said mortgage association ever since that time has been, and still is, ready, able, and willing to furnish the full amount of said loan to said plaintiffs to enable them to consummate their purchase in accordance with their actual contract *Page 327 with the defendants. That the plaintiffs at all times stated have been, and now are, ready, able, and willing to comply with and perform all the actual terms and conditions of their said agreement with the defendants, including the payment of said purchase money, and to consummate their purchase of the entire premises in suit, upon defendants furnishing such marketable title thereto with a complete abstract of title, as the latter are by said contract required to do. The said plaintiffs at various times, in the month of June, 1946, and thereafter, notified the defendant Frank Eberl to that effect and requested performance of said contract by said defendants. That said plaintiffs have never rescinded, or attempted to rescind, said contract.
The court further found that the defendants failed and refused to furnish to the plaintiffs, although repeatedly requested so to do, an abstract of title for the west one (1) foot of lot No. one (1), which the parties had intended and agreed to include in their contract and sale in suit and also denied plaintiffs' right to have or receive a conveyance to them of said one foot of said lot No. 1. Defendants' failure and refusal in said respects became the principal and controlling obstacle which delayed and prevented the consummation of said sale according to said contract. The other matters, two in number, referring to the title to said premises and set forth in a written opinion dated August 10, 1946, of the attorney for said mortgagee Welfare Building Loan Association and communicated to the defendants for their consideration and attention, were inconsequential and readily explainable by defendants, and stated the facts in relation thereto.
The defendants by letter of their then attorney, acting by their direction, on or about October 12, 1946, refused to carry out and perform their said contract with the plaintiffs and tendered to the latter an unsigned and worthless check for $100 in a useless attempt to return plaintiffs' deposit of earnest *Page 328 money in that amount. On December 4, 1947, and during the trial of this action, a check in that amount was again offered to the plaintiffs which the latter refused.
The court found further facts relating to improvements made, taxes paid, and so forth, which are not material upon this appeal. The court directed judgment in accordance with the findings. Judgment was entered in accordance with the findings and conclusions of the court on February 16, 1948, from which the defendants appeal. The defendants state the question involved as follows:
"Can the trial court order that a contract between the parties be reformed and decree specific performance of the contract as so reformed in the absence of any testimony from plaintiffs to show that the original contract did not correctly state the intention and agreement of the parties, and in the face of defendants' positive and uncontradicted testimony that the original contract represented the agreement and intention of the parties?"
Instead of stating the question involved the defendants made a short summary of their argument and position in the case. The real question involved is whether the evidence sustains the finding of the trial court. An examination of the appellants' appendix discloses that there was ample evidence offered and received in the case to sustain each one of the court's findings. For instance, the defendant claims that his testimony to the effect that the original contract represented the agreement and intention of the parties was positive and uncontradicted. The plaintiff testified: "I thought I was buying a twenty-five-foot lot and a foot from lot No. 1 . . . . Mr. Eberl told me that the lot was too narrow and that he had purchased a foot of lot No. 1 . . . . At the time I negotiated for the sale *Page 329 of this property I intended to purchase both of the buildings on lot 2 and the lot and one foot of lot No. 1."
There is other testimony to the same effect. What the defendants really claim is that on the basis of their contention the contract did not represent the agreement between the parties.
It is undisputed in the case that the defendants have never offered an abstract of the title to the west one foot of lot No. 1, as the contract requires them to do, although they allege in their answer that the buyers have refused to waive the defects in title. As it is in this, so it is in relation to other controverted questions of fact. It is quite apparent from a consideration of the record that the defendants are attempting to repudiate their contract, and have made no good-faith effort to comply with its terms.
Upon the whole record it is considered that the findings of the trial court are sustained, and that the findings made sustain the judgment, and the judgment should be affirmed.
By the Court. — Judgment affirmed.