86 Wis. 14 | Wis. | 1893
The contention of the plaintiff that the evidence to sustain the defense was not admissible is, we think, founded upon a misapprehension of the nature of the transaction and the purpose for which the evidence was introduced. After the execution and delivery of the deed the plaintiff retained the entire consideration and held it upon the trust and agreement that he would apply it to the payment of existing incumbrances on the land, which the defendant was bound by his covenant to pay, and in the payment of which the plaintiff had a special interest. He assumed and undertook to do with the defendant’s money what the defendant was himself in duty bound to do. The
The defendant’s covenant against incumbrances was broken by the existence of the incumbrances as soon as made, and turned in respect to them into mere rights of action. It was competent, not only for the parties to agree in what particular manner this covenant should be extinguished, but how and in what manner the cause of action which had incidentally accrued on it should be discharged. The case in this respect is in principle the same as Jones v. Keyes, 16 Wis. 562, where the defendant gave the plaintiff his note for the price of certain letter boxes, drawers, and post-office furniture, with a parol agreement that each should receive his proportionate share of the rent of the boxes, etc.-, during the quarter when the defendant took possession of the office, and that his share, when ascertained and received, should be indorsed on the note, and it was held competent to show by parol- such contemporaneous agreement as to the manner in which the note was to be
By the Gourt.— The judgment of the circuit court is affirmed.