Kelly v. Sullivan

In Kelly v. Sullivan, 252 Wis. 52, 30 N.W.2d 209 (1947), the parties simultaneously executed a written agreement for the conveyance of real estate. The agreement recited the seller's receipt of $ 5 earnest money. See Kelly, 252 Wis. at 54. Later, the seller refused to convey the property. The buyer commenced an action for specific performance. The seller defended on the grounds that the earnest money had not been paid. See 252 Wis. at 56. The supreme court summarily rejected this argument stating: "If it was otherwise valid, the November 24th agreement would be enforceable even if the phrase, "in consideration of $ 5," had not been included. It is clear from the rest of the writing that there is ample consideration for the seller's promise to convey a warranty deed, for the buyer in effect promises to pay the sum of $ 8,600 mentioned in the agreement. There is no failure of consideration." Id.