Bahr v. Evangelical Lutheran St. John's Society of Poynette

295 N.W. 700 | Wis. | 1940

Action by Ludwig Bahr and Herman Henze, plaintiffs, commenced September 2, 1939, to foreclose a certain real-estate mortgage bearing date of June 16, 1924, in the principal sum of $4,000 payable on or before two years after date with interest at the rate of six per cent per annum, said mortgage being executed by the Evangelical Lutheran St. John's Society of Poynette, Wisconsin, otherwise known as Evangelical Lutheran St. John's Congregation of Poynette. From a judgment of foreclosure and sale, defendants appeal.

At the time in question plaintiffs and defendants were members of the defendant congregation. Its members were desirous of purchasing a parsonage for use in connection with their church. A committee of the church council inspected several houses, among others, the D. A. Newman house, which they finally decided to purchase for the sum of $4,000. It appears that the members of the congregation met on May 15, 1924, at which time the committee of the church council made its report to the members of the congregation recommending the purchase of the Newman property. The secretary's minutes of that meeting are as follows:

". . . The committee and the church council inspected several houses and came to the conclusion that the D. A. Newman house with two lots and a barn for the sum of $4,000 was the best buy. After much discussion pro, and con and when it became known that two of our members, Herman Henze and Ludwig Bahr, were prepared to loan the money to the congregation, it was moved and seconded that we purchase the Newman house. This was unanimously accepted. Furthermore, it was decided and the church council authorized to prepare all the papers. The assembly thanked Messrs. Henze and Bahr for their magnanimity in advancing the money to the congregation. . . ."

The purchase having been approved, the plaintiffs loaned the congregation the full purchase price of $4,000. The note and mortgage were executed on behalf of the congregation by its president and secretary on June 16, 1924, and recorded in the office of the register of deeds for Columbia county on June 17, 1924. The only issue made by the pleadings and litigated on the trial was whether the officers of the congregation were authorized at the meeting of May 15, 1924, to include the church property in the mortgage to secure the payment of plaintiffs' loan. On the trial plaintiffs offered oral testimony to show that a mortgage on both the parsonage and the church properties was authorized. Both the president and the secretary of the defendant congregation, who executed the note and mortgage on its behalf, testified positively that it was the intention of all parties that the mortgage was to cover both the church property and the parsonage property, and that they were authorized, on behalf of the congregation, to so execute the mortgage. Defendants objected to any oral testimony tending to contradict the secretary's minutes as transcribed by him of the meeting held on May 15, 1924.

The case was tried to the court, whereupon the court made the usual findings in mortgage foreclosure actions, and further specifically found that the officers of the congregation were duly authorized to include both the church and the parsonage properties in the plaintiffs' mortgage; that said note and mortgage are valid obligations of the defendant congregation; and that a majority of its members consented to the execution of said note and mortgage. The court further found that defendant congregation never denied the validity of said mortgage until this action was commenced and that none of its members ever claimed to the plaintiffs, or either of them, until subsequent to the commencement of this action, that the church property should not be included in the mortgage.

Judgment of foreclosure and sale in the usual form was entered February 20, 1940. Defendants appeal. Additional material facts will be stated in the opinion. No question is raised on this appeal as to the validity of the indebtedness represented by the note secured by the mortgage under foreclosure and defendants concede the validity of the mortgage as to the parsonage property. They contend, however, that the judgment as entered in the court below should be modified by striking therefrom the church property.

The plaintiffs contend that at the time they agreed to make the loan of $4,000 and at the time the mortgage was executed, it was fully understood and agreed by all that they were to have a mortgage security on both the parsonage and church properties. In this contention plaintiffs were supported by the testimony of both the president and secretary of the congregation who executed said note and mortgage on its behalf. It will be noted that the secretary's minutes of May 15, 1924, quoted in the foregoing statement makes no reference to a mortgage on any specific property. They do show that the church council was, by a unanimous vote, authorized to prepareall the papers. What property was to be included in all the papers is not indicated by the secretary's minutes. We think it clear that the church council was authorized to prepare any and all papers necessary, not only to complete the purchase of the Newman house, but, likewise, they were authorized to prepare and execute a mortgage to the plaintiffs to secure the $4,000 loan. It would indeed be an unusual transaction for men of mature judgment to make a loan of $4,000 on mortgage security representing one hundred per cent of the purchase price.

All the testimony on behalf of defendants on the issue as to whether the church property was to be included in the mortgage is negative testimony, such testimony being to the effect that they could not recall anything being said by the members of the congregation at the meeting of May 15, 1924, that the church property was to be included in the mortgage.

The oral testimony received at the trial was not in contradiction of the secretary's minutes of the meeting of May 15, 1924. It is obvious that the minutes are not complete. They make no reference to a mortgage in any sum on either the parsonage or the church property. Defendants concede that plaintiffs were to have a mortgage security for their loan. The oral testimony was in explanation of the secretary's minutes as to the property to be covered by the mortgage. The mortgage was one of the papers which the officers of the defendant congregation were authorized to prepare.

"While parol evidence will not be admitted to contradict or vary the terms of a written instrument, it is always admissible in case of ambiguity for the purpose of ascertaining the sense in which the parties intended to use the ambiguous term or terms, and the rule is sufficiently broad to permit the introduction of evidence of antecedent or contemporaneous oral agreements or conversations for purposes of interpretation."Darling Co. v. Frank Carter Co. 208 Wis. 222, 228,242 N.W. 519. (See cases cited.)

In Chippewa Bridge Co. v. Durand, 122 Wis. 85,99 N.W. 603, which involved the letting of a contract for municipal public works which was governed by statute, the minutes of the city clerk as to the date to which a meeting of the city council had been adjourned was an issue in the case. The clerk's minutes show that the meeting had been adjourned to December 23d. The parol evidence was to the effect that the adjournment was to the 21st. At page 103, the court said:

"The authorities are not in harmony as regards whether evidence aliunde the official record is permissible to show proceedings of a public governing body, where the law requires such a record to be kept. The rule here is that such evidence is not admissible where the effect thereof will be to vary or contradict the record, but may otherwise be receivedfor the purpose of showing occurrences which, throughoversight or some other cause, were not recorded." (See cases cited.)

In Dunn Stringer Investment Co. v. Schaefer,209 Wis. 299, 303, 245 N.W. 85, the rule is stated thus:

"The law is pretty well settled that where it appears from the writings themselves that the whole agreement is not stated therein, and that the writings are incomplete to express the entire agreement, parol evidence may be received to supply that portion of the agreement not covered by the writings." (Citing cases.)

In the case of Duluth, South Shore Atlantic R. Co. v.Douglas County, 103 Wis. 75, 79 N.W. 34, there was no record of any proceedings of the county board showing that the board had authorized the taking of the appeal. The court said at page 78:

"It is not a subject affected by any law making a record the only evidence of it; therefore if the board acted in the matter, it appearing that written evidence thereof was not preserved, the facts in that regard may be established by parol."

The oral testimony in the instant case was properly received. It did not contradict the secretary's minutes of the meeting of May 15, 1924. It explained and completed the business transacted at that meeting. This oral testimony, taken in connection with the written minutes of the meeting, amply supports the findings of the trial court that the members of the defendant congregation had duly authorized its president and secretary to execute the mortgage in question covering both the parsonage and church properties.

By the Court. — Judgment affirmed.