There are several questions presented on this appeal, which will be considered in their order.
1. The first error assigned is that the court erred in the construction of the contract, in that it was not found that defendant was entitled to have the payments for rent applied on the purchase money.
In construing a contract, it must be observed that while ¡the office of judicial construction is to give effect to the intention of the parties, and that words and sentences should ■be so construed as to subserve such intention (Johnson v. N. W. Nat. Ins. Co. 39 Wis. 87; Weiseger v. Wheeler, 14 Wis. 101; Jacobs v. Spalding, 71 Wis. 177), this does not mean that violence may be done to the words the parties see fit
2. It is further claimed that, if the construction contended for by defendant is not correct, then the contract should be-reformed.
This court has repeatedly held that written contracts cannot be. reformed except upon most positive and satisfactory evidence showing fraud or mistake in committing the agreement to writing; that is, mistake of one party and fraud of the other, or mutual mistake, Newton v. Holley, 6 Wis. 592; Lake v. Meacham, 13 Wis. 355; Harrison v. Juneau Bank, 17 Wis. 340; Fery v. Pfeiffer, 18 Wis. 510; Menomonee L. Mfg. Co. v. Langworthy, 18 Wis. 444; Ledyard v. Hartford F. Ins. Co. 24 Wis. 496. The proof must be plain,, convincing, and beyond reasonable controversy that by fraud or mistake the true contract was not expressed in the-writing (Blake Opera House Co. v. Home Ins. Co. 13 Wis. 667); that is, as applied to this case, a mistake in omitting-something which the parties intended to have inserted, or something which was in fact a part of the agreement, and; which it was supposed was contained in the writing when it was signed and delivered,— not a mistake of judgment, in that one party relied upon the contemporary parol agreement of the other, instead of insisting upon its being reduced
3. It is further claimed that the court erred in not finding that the written contract was modified by a subsequent oral contract.
It must be conceded, as claimed by appellant, that a written contract may be modified by a subsequent parol agreement without any new consideration to support it (Lynch v. Henry, 75 Wis. 631); but the trouble in- this case is that the-evidence wholly fails to show any such subsequent agreement. The very theory upon which the action was brought in the circuit court to reform the contract,- and that the-claim for reformation was made in this case, is consistent, only with the theory that the agreement which appellant, seeks to show was contemporaneous with the written contract, not subsequent to it; and that is strictly in accordance with the evidence. Polabeck, one of the officers of the defendant, testified that the conversation about applying the-rent paid as purchase money in case the option was accepted was before the contract was delivered. Fred 0. Gross, also an officer of the defendant, testified that the conversation was at the time the contract was written and signed. Charles. Friedrich, the secretary, and the one who wrote the contract, testified that the matter was talked over at the time of the making of the contract; that the remark about having the payments of rent appljr on the purchase money was. after the writing was signed, and before it was delivered^
4. It is further claimed that the case comes within the rule that, where only a part of the contract was reduced to writing, it is competent to prove by parol that part that rests in parol, under the rule referred to, but not applied, in Hubbard v. Marshall, 50 Wis. 322. Appellant asks, on this branch of the case, to have force given to the fact that the purchase price of the property was not fixed by the writing, but left to be thereafter determined. Rut we think the use <of the words “ not exceeding $900 ” means no more than that the purchase price, strictly so called, should not be more than the price named. It suggests only that, while circumstances might arise whereby the vendor would consent to take less, the vendee might at any time within the period named have the property at the price mentioned. The rule that appellant invokes applies to a case where an entire verbal contract in part performance only has been reduced to writing (Wharton, Ev. § 1015; Hope v. Balen, 58 N. Y. 382; Chapin v. Dobson, 78 N. Y. 75); or where there was a distinct contemporaneous parol agreement, and one of the parties seeks to make use of the written agreement for purposes inconsistent with the parol agreement, under such circumstances as would render such use fraudulent (Juilliard v. Chaffee, 92 N. Y. 529; Martin v. Pycroft, 2 De Gex, M. & G. 785; Jervis v. Berridge, 8 Ch. App. 351). But the rule is not so broad as to allow parol proof of mere contemporaneous stipulations or conditions; the writing being the agreement, and not a mere part performance or incident of it. Under such circumstances, the proof of such contemporane
5. The remark made by the presiding judge expressing a reason for dismissing the complaint in the action to reform the contract is not, under the circumstances, res adjudicate/, in plaintiff’s favor on the question of the proper construction of the writing. That question was not within the issues made by the pleadings. Appellant then claimed that, through fraud or mistake, a material part of the agreement was not inserted in the writing. On this he failed, and judgment was rendered against him. A judgment is conclusive only as to that which was in issue. Murphy c. Farewell, 9 Wis. 102; Hagan v. Casey, 30 Wis. 553; Pfennig v. Griffith, 29 Wis. 618. Reasons given in the course of a trial for an order •or judgment, not contained or referred to in such judgment •or order, are not res adjudicates. Robinson v. N. Y., L. E. & W. R. Co. 64 Hun, 41; Harmon v. Auditor of Public Accounts, 123 Ill. 122; Girardin v. Pean, 49 Tex. 248; Greathead v. Bromley, 7 Term, 456; Barrett v. Failing, 8 Oreg. 152. Neither can evidence of such reasons be given to vary the effect of such judgment as it appears upon its face, if
By the Oowr.t.— The judgment of the superior court is affirmed.