State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 157 Wis. 139. STATE EX REL. CITY OF MILWAUKEE, Appellant, vs. MILWAUKEE ELECTRIC RAILWAY & LIGHT COMPANY, Respondent. March 19-May 1, 1914. Street railways: Regulation: Paving of railway zone. State ex rel. Milwaukee v. Milwaukee E. R. & L. Co., ante, p. 121, followed in a case in which the railway zone had never been paved, it being held that when the city had paved the remainder of the street and the railway zone was not in good repair the street railway company might be compelled to pave its zone with a pavement of the same kind as that used by the city. WINSLOW, C. J., BARNES, J., and VINJE, J., dissent. APPEAL from an order of the circuit court for Milwaukee county: F. C. ESCHWEILER, Circuit Judge. Affirmed. The appeal is from an order overruling a demurrer to the respondent's return to an alternative writ of mandamus. For the appellant there was a brief by Daniel W. Hoan, city attorney, and Clifton Williams, assistant city attorney, and oral argument by Mr. Williams. For the respondent there was a brief by Miller, Mack & Fairchild, and oral argument by E. S. Mack. TIMLIN, J. This case is in all respects like the preceding case of the same title, except that this relates to Folsom street, which was, when the street railway tracks were laid therein and up to September, 1913, a street which was from curb to curb composed of a combination of earth, crushed stone, and gravel. About the date last mentioned the city paved with sandstone pavement upon a concrete foundation the street in question, except the zone required by the franchise ordinance of 1900 to be kept in good repair by the railway company. This zone consists of a strip in the middle of the street between the rails and for one foot on the outside of each rail as laid and the space between the two inside rails of the State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 157 Wis. 139. double tracks of the respondent. By this action it is sought to compel the respondent to pave this zone with the like pavement as is now upon the remainder of the street, and the basis for such compulsion is the fact of the construction by the city of a sandstone pavement on a concrete foundation as stated, and an averment that the said zone is not in good repair and in a very uneven, rough, and dilapidated condition, and has no paving whatever therein, but the surface thereof consists of dirt and some sand and gravel, which during wet or rainy weather becomes soft and muddy, and during dry weather rough, uneven, and dusty, and at all times dangerous, etc. The respondent avers, among other things, that it has the zone in good repair and is ready and willing to continue to keep the zone in question in good repair with such material as the city may at any time use to pave or repave the zone in question, and that it refuses to pave with sandstone pavement upon a concrete foundation. Under the view taken in the companion case of the effect of sec. 1862, Stats., following Madison v. Southern Wis. R. Co. 156 Wis. 352, 146 N. W. 492, there is no substantial distinction to be found in the fact that in the companion case the street was paved with a cedar block pavement at the time the ordinance was enacted. The case is governed by the decision in the companion case of the same title, and the order overruling the demurrer should be affirmed for the reasons therein given. By the Court.-Order affirmed, and the cause remanded for further proceedings according to law. WINSLOW, C. J., BARNES, J., and VINJE, J., dissent. [For opinion, see preceding case.] Goldstine v. Tolman, 157 Wis. 141. GOLDSTINE and others, Respondents, vs. TOLMAN and others, Appellants. March 19-May 1, 1914. Contracts: Requisites: Meeting of minds: Preliminary agreements: Incompleteness: Practical construction by parties: Agreement to lease: Specific performance: Breach by both parties. 1. Where a contract informal but complete in its terms appears to have been made, it will take effect although the parties contemplate that a more formal one will thereafter be made; but writings intended only as preliminary negotiations, to be followed by a formal contract containing material provisions not contained in or to be inferred from such preliminary writings, I will not take effect as a contract. 2. By a "preliminary agreement" the owner of a city lot agreed to lease it to plaintiffs for ninety-nine years "on the usual terms as applied to a ninety-nine year lease," and plaintiffs were to erect a building thereon. Payment of $250 by the plaintiffs was recited "for the payment of attorneys' fees, providing this lease is not merged into an actual agreement and new lease. If it is, they are to have credit for $250." Said agreement, with a supplemental agreement, definitely settled some of the main provisions of the lease thereafter to be executed, such as the term, the rental to be paid, the cost of the new building, the time when it was to be completed, the ownership of it at the end of the term, and the sum to be advanced by the lessor in aid of its construction, but as to many other important matters (some of which were referred to in said agreements) made only the general provision above quoted. It appears that there was no general or usual form for a ninety-nine year lease in use in the city where the property was located. After the execution of such preliminary agreements, the parties disagreed as to various matters left indefinite therein, and each in turn submitted two successive leases embodying his own ideas thereof, differing, however, in their terms and containing also modifications of some of the definite provisions of the agreements. At the end of about six months they were unable to harmonize the points of difference and negotiations practically ceased. Held, that said agreements were tentative only, and that there was no definite contract upon the terms of which the minds of the parties had fully met or of which specific performance could be enforced. Goldstine v. Tolman, 157 Wis. 141. 3. In an action for specific performance, brought more than a year and a half after negotiations had ceased and after the defendant owner had spent large sums on repairs and had given a ninetynine year lease to another person, the trial court held that plaintiffs were entitled to specific performance of the preliminary agreements, and prepared a lease which it held to be in conformity therewith. Such lease differed materially from any of the leases drawn by the parties and submitted to each other as above stated. Held that, even assuming that the minds of the parties had in fact met on the terms of the lease prepared by the court, plaintiffs were not entitled to relief, because their failure during the negotiations to state with substantial accuracy the terms of such lease was as much a breach of their obligation as was the owner's like failure a breach of his obligation. APPEAL from a judgment of the circuit court for Milwaukee county: OSCAR M. FRITZ, Circuit Judge. Reversed. This action was brought to enforce specific performance of an alleged agreement to enter into a ninety-nine year lease, and resulted in a judgment for the plaintiffs. On October 16, 1909, the plaintiffs and the defendant S. A. Tolman entered into the following agreement: "This preliminary agreement certifies that S. A. Tolman, party of the first part, and James A. Silver, Max Goldstine and Gustave E. Kahn, parties of the second part; that party of the first part agrees to lease the property south of the alley facing on Third and Sycamore streets in Milwaukee, Wis., owned by first party, to parties of the second part for ninetynine years on the usual terms as applied to a ninety-nine year lease, leasing the property for the first fifteen years at $22,500 per year, balance of eighty-four years at $23,500 per year, payable monthly in advance, first party agreeing to rebate the first year during building, $5,000 from the rental parties of the second part are to pay as here specified. Parties of the second part agree to put up a fire-proof building which shall be put up with foundations sufficient to carry ten or more story building and walls to carry that height also, and party of the second part shall give good and sufficient security that they will put up a building to cost not less than $200,000 and any more money required to complete the Goldstine v. Tolman, 157 Wis. 141. building they are to furnish. Party of the first part agrees to loan party of the second part $100,000 for five years at five per cent. per annum. After five years second parties to have option to have loan continued and pay $10,000 on the principal annually until it is paid. Interest on money loaned by said first party payable monthly in advance. Parties of the second part are to have plans and specifications drawn and submit same to the party of the first part for his approval, and no building shall be put up without his approval and he puts in this $100,000 after party of the second part have put in theirs and he as fast as architect's certificates and mechanic's liens are furnished. Parties of the second part shall have the right to purchase the property any time within ten years at $550,000. Parties of the second part shall insure the property at least eighty per cent. of the value of the buildings and in case of fire the same shall be paid to the first party as his interest may appear, and this insurance on the property shall continue to his benefit during the life of the lease, and at the end of the lease term, buildings shall go free to the party owning the fee simple. Party of the second part hereby pays $250 for the payment of attorneys' fees, providing this lease is not merged into an actual agreement and new lease. If it is, they are to have credit for $250. Date of this lease to take effect on the 1st of January, 1910. Parties of the second part having all signed this agreement and are to continue to be responsible to party of the first part for the lease up to the time of full payment of money advanced for the building. Parties of the second part have the right to form a holding company with sufficient responsibility to carry on and make them responsible for the rental of the property and carry out this preliminary agreement; parties of the second part personally signing the notes and lease and being personally responsible to the end of the time when the payment is fully made for money loaned by party of the first part. Lease must be completed and signed not later than November 5, 1909." On October 20, 1909, the following supplementary agreement was made: "This agreement, made between S. A. Tolman of the city of Chicago, Cook county, Illinois, party of the first part, and |