194 Wis. 296 | Wis. | 1927
The following opinion was filed October 11, 1927:
It is urged very strenuously here that negotiations between the parties prior to and at the execution of the written contract were merged in it and could not be extended or contradicted by parol evidence. As a general principle that is undoubtedly sound, but to it there are some exceptions. Parol evidence is always admissible to show that a written contract not under seal was not to become effective until some fútttré day or upon the happening of some contingency, • provided the written conditions are not repugnant to the conditions sought to be established by parol.
In this case the finding of the jury establishes the defendant’s contention, although the question as submitted was not framed with regard to the legal proposition stated. While the contract itself admitted the receipt of $200, it is not claimed that the amount was paid, and it would seem to be quite a natural thing for the parties to agree that until it was paid the contract should not become effective. It is not necessary that there be fraud; if there was an agreement or understanding, as found by the jury in this case, that the, contract was to be, as the defendant stated it, “no good” until he made the down payment, it is sufficient, and that fact may be established by parol evidence without in any way infringing on the rule contended for by plaintiff. The contingency upon which the contract was to go into effect having never happened, the defendant is not liable. We do not find it necessary, therefore, to discuss the question of measure of damages, a question also argued in this case.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, without costs, on December 6, 1927.
