Clifford v. Baessman

41 Wis. 597 | Wis. | 1877

LyoN, J.

The only question in the ease which we find it necessary to consider is, yhether the court ruled correctly in refusing to allow the plaintiff to explain by parol testimony his letters to the defendant.

The rule of law applicable to the question is thus stated by CowEN, J., in M'Crea v. Purmort, 16 Wend., 460: “Wherever a right is vested or created, or extinguished, by contract or otherwise, and writing is employed for that purpose, parol testimony is inadmissible to alter or contradict the legal and common sense construction of the instrument; but any writing which, neither by contract, the operation of law nor otherwise, vests or passes or extinguishes any right, but is only used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic; circumstances or facts. Thus, a will, a deed or a covenant in writing, so far as they transfer or are intended to be the evidences of rights, cannot be contradicted or opposed in their legal construction by facts aUimde. But receipts and other writings which only acknowledge the existence of a simple fact, such as the payment of money for example, may be; susceptible of explanation and liable to contradiction by witnesses.”

The other cases' cited by the learned counsel for the plaintiff are to the same effect; and we think the rule is correctly stated in the above extract from the opinion in M'Crea v. Purmort.

The inquiry in this cáse is, What were the terms o|f the contract between the parties? Was it a contract of sale on condition that the logs could be got out of the slough, or merely a contract to get them out of the slough when the water would permit? The contract, whatever it wns, is not contained in the letters, for they were written some weeks after the ageement was entered into. The letters are therefore no part of the res gestee. They do not vest, pass or extinguish any right, but were introduced in evidence as tending to prove collaterally the fact that the contract was one for service only, and not for a purchase and sale of the logs. Hence, it seems clear that, under the rule above stated, the explanatory testimony should have been received.

Unexplained, the jury might have inferred from the letters that the plaintiff, when he wrote them, regarded the logs as his absolute property; for the directions which he gave therein concerning the logs, and the manner in which he speaks of them, are quite consistent with that inference. And yet, had the rejected testimony been received, he might have been able to satisfy the jury that such inference was not the correct one, and that the letters should not be taken as admissions that he had not sold the logs to the defendant, but that they were written upon the theory that when the logs reached the defendant’s boom, they would belong to the latter under the contract between the parties. And this might have been done without doing any violence to the language of the letters.

The evidence as to the terms of the contract is very conflicting, and does not seem to preponderate greatly either way; and it’may be that the unexplained letters turned the scale in favor of the defendant.

We think that it was error to repel the explanatory evidence; and because the plaintiff may have been' injured thereby, the judgment of the circuit court must be reversed, and the cause remanded for a new trial.

By the Covert. — So ordered.