83 Wis. 434 | Wis. | 1892
The learned circuit judge, in making the above ruling, intimated the opinion that plaintiff was estopped by his laches, in that he did not return the assignment, or notify defendant that its conditions had not been complied with, from asserting that the assignment was not unconditionally delivered to plaintiff. Yet we understand the ruling really to have been made on the ground that the admission of such testimony would violate, the rule which prohibits testimony of parol stipulations, made before the execution of the written contract, offered. for the purpose of modifying or changing the terms of the writing.
We think the above ruling was erroneous. The assignment expresses a joint as well as several contract, and shows on its face that it was intended to be executed by three subscribers. It is only executed by one. It is probable that the fair inference from -the writing itself is that the parties did not intend it to be operative until the three subscribers had signed it, and hence that the burden is upon defendant to prove that it was delivered by him, and accepted by plaintiff, unconditionally, and was to be in full force and effect without such other signatures. If this is a correct view, the testimony of Mr. Teall was certainly admissible to rebut any such proof on the part of the defendant. See Taylor v. Coon, 79 Wis. 76, 82. But, if the view above suggested is not the correct one, it is clear that Mr. Teall’s testimony did not tend to change or modify the terms of the written assignment, but went only to the question as to whether the same had been so delivered as to become operative as the contract of the parties. We understand the rule to be well established that parol testi
Furthermore, we discover nothing in the rejected testimony of Mr. Teall which violates the rule excluding proof of mutual propositions of settlement by parties to a controversy.
Our conclusion is that, in any view of the case, it was error to exclude the testimony of Mr. Teall.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new, trial.