168 Wis. 523 | Wis. | 1919
Lead Opinion
The written contract for the exchange of properties was unambiguous and complete in itself. It stated what each party agreed to do in order to secure the conveyance contracted for from the other. The Skidmore Land Company agreed to convey to Coons certain real estate in consideration of his deeding to it, subject to the mortgages in suit and others, the land it was to receive. The terms, therefore, upon which it agreed to part with its land and the terms upon which it would receive the Coons land were contractual terms. They constituted the very essence of the contract. It is a familiar rule that the material contractual terms of a written contract, when complete and unambiguous, cannot be contradicted or varied by parol testimony of prior or contemporaneous conversations or agreements. 4 Wigmore, Ev. § 2425; 10 Ruling Case Law, 1021; 3 Jones, Ev. (3 Horwitz, Comm.) § 434. This rule applies as well to the consideration expressed in a writing when that is contractual as to other terms theréin. 10 Ruling Case Law, 1044. In land contracts such as the one in question the consideration is a contractual part of the writing. Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909.
In deeds and other unilateral contracts where some expressed consideration is essential to give validity to the instrument or to prevent a resulting trust in favor of the grantor and because the instrument does not purport to express the complete contract between parties, a different rule obtains and parol testimony is admissible to show the con
That an agreement to- assume and pay a mortgage upon conveyed property is essentially different from an agreement to take title thereto subject to- the mortgage is too obvious to need discussion or explanation. Hence an agreement to take title to land subject to a mortgage is varied by showing that the mortgage debt was assumed by the grantee, because it adds a personal liability not present in the original undertaking.
A suggestion is made that the provision in the written contract as to consideration merged in the deed and therefore, since oral testimony is admissible to contradict the consideration expressed in a deed, the testimony offered was erroneously excluded. That the provision as to consideration in the contract did not merge in the deed is ruled in Butt v. Smith, 121 Wis. 566, 99 N. W. 328. In that case it was held that the terms of an oral agreement as to consideration did not merge in a deed subsequently executed; that they could be shown by parol testimony, and if they were contradictory to- the deed they controlled - as to the amount of consideration to be paid for the conveyance. In the present case the amount of consideration was expressed in a written contract and as there expressed was identical with the recital in the deed. It has also been held that an original contract for the exchange of real estate in which each party assumed a mortgage on the property conveyed to- him did not merge in deeds subsequently executed which contained no provision for the assumption of the mortgages. Stockton v. Gould, 149 Pa. St. 68, 24 Atl. 160. This is on the theory
The finding of the trial court that the agent, Hawkins, sent by the Land, Company to have the papers executed, had no authority to bind the company by any agreement different from that expressed in the written contract and the written instructions given him, cannot be successfully assailed as against the weight of evidence. It appears that Coons knew that Hawkins had express written instructions to which he frequently referred during their transactions
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). A preliminary land contract was made in this case for the exchange of land in Minnesota for cut-over land in Wisconsin. The Minnesota land was incumbered by mortgages in the sum of $11,465. The amount to be paid the Skidmore Land Company was arrived at by deducting the $11,465 incumbrance. A deed was afterwards given and accepted by the Skidmore Land Company in consummation of the deal.
It is plain from the deed and the surrounding circumstances shown in evidence, that the land contract did not contain all the terms of the agreement. The deed, being the final contract of the parties covering the subject matter of the deal., is controlling. This proposition is elementary.
The parties to the deed cannot escape from its provisions even if the preliminary contract was in conflict with it, which it was not. The contract did not cover the whole agreement. The deed is controlling not only as to its terms but as to its legal effect.
When a deed is delivered and accepted as performance of a contract tO' convey, the contract is merged in the deed. Though the terms of the deed may vary from those contained in the contract, still the deed must be looked to alone to determine the rights of all the parties. “No rule of law is better settled than that where a deed has been executed and accepted as performance of an executory contract to convey real estate, the contract is functus officio, and the
Under the deed in question it was competent to show that the Skidmore Land Company assumed and agreed to pay the incumbrance. Strohauer v. Voltz, 42 Mich. 444, 4 N. W. 461 (opinion by Cooley, J.), is directly in point. In that case there was a warranty deed and a covenant against incumbrance, “subject to a certain mortgage given by the parties of the first part for one thousand dollars,”' and it was held that oral evidence was competent to show that the grantee had assumed and agreed to pay the mortgage. This court as well as others has held the same rule. Herrin v. Abbe, 55 Fla. 769, 46 South. 183, 18 L. R. A. n. s. 907; Mueller v. Cook, 126 Wis. 504, 509, 105 N. W. 1054; Perkins v. McAuliffe, 105 Wis. 582, 587, 81 N. W. 645; Beckman v. Beckman, 86 Wis. 655, 660, 57 N. W. 1117; Kickland v. Menasha W. W. Co. 68 Wis. 34, 31 N. W. 471; Frame v. Attermeier, 147 Wis. 485, 133 N. W. 603. Herrin v. Abbe, supra, is directly in point. The deed recited a consideration of “$1 and other valuable considerations,” and further, “The above property is conveyed subject to all liens and mortgages now standing of record against the same.” It was held that oral evidence was admissible to show that the grantee assumed and agreed to pay the incumbrance, and that such evidence did not vary the provision making the conveyance subject to the incumbrances.
The same rule applies to land contracts, and necessarily so, because a contract is no more sacred than a deed. 17 Cyc. 653. In Witzel v. Zuel, 90 Minn. 340 (96 N. W. 1124), at p. 342 it is said :
“The court did not err in denying this motion for the very sufficient reason that a portion of the evidence was not objectionable, and it seems also clear that under any circumstances the amount of consideration for the lands designated in the written instruments referred to was not conclusive, but might be shown by parol.”
Even if it be conceded that the land contract and the deed executed later are but parts of the same transaction and must be read together the result is the same: (a) because oral evidence was admissible to show other consideration in either contract or deed, and (b) the contract was incomplete, as shown by the deed and surrounding circumstances. In Jost v. Wolf, 130 Wis. 37 (110 N. W. 232), at p, 41 this court said:
“Further, appellant urges that the land contract and the deed executed ten days later are but parts of one transaction, and, read together, constitute complete written expression of its terms not subject to variation by parol. This is, however, merely begging the question of fact whether they were parts of one transaction, or whether another transaction took place after the written land contract and the deed was made in execution of such later contract.”
There can be m> doubt but that the Land Company is bound by all the terms of the deed. It accepted and ratified it. It contained terms different and in addition to those specified in the land contract and expressed a consideration of “sixty-eight hundred dollars and other valuable considerations,” and also contained a recital that the land was sold “subject to the following mortgages,” aggregating $11,465. The “other valuable considerations” can be shown by oral evidence. Frame v. Attermeier, 147 Wis. 485, 133 N. W. 603. The amount of consideration mentioned in the deed to Thompson was arrived at by deducting the amount of the incumbrances, $11,465, from the estimated value of the land. Thompson was substituted as grantee in place of the Skidmore Land Company by agreement between Coons and Hawkins, who represented the Skidmore Land Company in the deal.
It seems to me clear that, even construing the land contract and deed together as one agreement, evidence of the real consideration was admissible. The evidence offered to the effect that the Skidmore Lmd Company assumed the incumbrance was not in conflict with any provision of the land contract or deed. It was in harmony with both, especially when viewed in the light of surrounding circumstances and the law that the consideration may be shown to be different- from that written in the contract or deed.
The land contract was executed November 15, 1915. On December 14, 1915, the Skidmore Lmd Company informed Coons that it accepted the proposition made November 15, 1915, and three days later Coons wrote the Land Company that he had his interest paid to- December 1, 1915, and asked that the Land Company assume the mortgages from that date. The Land Company made no denial of this proposition of Coons that it assume and pay the mortgages, but afterwards sent its manager, Hawkins, to Minnesota to close the deal with Coons. The deal was closed and a consideration of $6,800 agreed upon, and it was further agreed that the conveyance be made to Thompson instead of to the Lmd Company, and that the indebtedness of $11,465 be assumed and paid by the Skidmore Land Compmy as part of the consideration. The evidence also tends to show that in the negotiations between Coons and Hawkins the consideration put
It was strenuously urged by counsel for respondent that the Skidmore Lmd Company was not bound by the agreement of Hawkins to- assume and pay the incumbrances, he being a special agent. However, Hawkins had authority on behalf of the Land Company to close the deal and accept the deed made. He had authority to vary the terms of the land contract, in some particulars at least, and had apparent authority' to do all that he did in making the contract. The Skidmore Land Company had notice, when it authorized Hawkins to go to Minnesota to close the deal, that Coons understood the incumbrances were to be paid by the Land Company, accepted and ratified the deed as made, and cannot question it in this action.
But even though Hawkins had no authority on the part of the Skidmore Land Company to' make an agreement assuming the incumbrances, still the court below committed prejudicial error in excluding evidence offered to' prove that Mr. Skidmore, officer of the Skidmore Land Company, who had authority, agreed to' assume and pay the mortgages on behalf of the company. This evidence related to the consideration, was competent and vital in tending to establish that the Land Company did assume and agree to pay the mortgages. This evidence alone would have been sufficient tO' carry the case to the jury.
The case here does not fall within the authorities holding that where the stipulation in the deed or contract is contractual it cannot be contradicted or varied by oral evidence. It is wholly immaterial whether the stipulation be in a deed or a land contract; if contractual it cannot be varied. This rule is elementary. But the consideration in either deed or contract may be varied, explained, or even contradicted. This is the situation in the case at bar. Strohauer v. Voltz, 42 Mich. 444, 4 N. W. 461; Herrin v. Abbe, 55 Fla. 769, 46 South. 183, 18 L. R. A. n. s. 907.
The evidence offered and excluded was consistent with
I am convinced that the judgment in this case should be reversed, and the cause remanded for a new trial: First. The deed of the Minnesota land was the final contract made in consummation of the deal, and oral evidence that the Skidmore Land Company agreed to pay the incumbrance was admissible. Second. Even if the deed and land contract be read together, the same result follows, bechuse the consideration in the contract as well as the deed could be shown by oral evidence; and if it be admitted that the evidence of Hawkins was inadmissible because he had no authority to make such an agreement, the evidence offered that Skidmore made such an agreement was admissible and should have been admitted. Third. Upon all the evidence and surrounding circumstances the agreement that the in-cumbrance was assumed did not contradict any covenant in the land contract or deed. The evidence offered and excluded went only to the consideration of the deed and contract. Fourth. It is plain from the evidence of Hawkins, as well as from the correspondence between the Skidmore Land Company and Coons, that the deed of the Minnesota land was made with the understanding on the part of Coons that the incumbrance was to be assumed and paid by the Land Company, the deed was made by Coons upon that condition, and the amount of the incumbrance deducted from the agreed value of the land. Under such circumstances the Land Company cannot profit by the deed and repudiate the oral agreement. Hannon v. Kelly, 156 Wis. 509, 146 N. W. 512; Corbett v. Joannes, 125 Wis. 370, 104 N. W. 69; Kipp v. Laun, 146 Wis. 591, 131 N. W. 418.
Even if it be conceded that evidence was not admissible
The judgment should be reversed, and the cause remanded for a new trial.
I am authorized to say that Justice Siebecker concurs in the foregoing dissent.