Hannon v. Kelly
146 N.W. 512
Wis.
1914
Check Treatment
Maeshall, J.

Was error committed by permitting oral testimony as to what was said when the verbal contract was made respecting the transfer of the hotel property to respondent respecting whether the scales would pass to the latter as part of the subject of the sale ?

It is contended that the rulings in question violated the principle that all negotiations leading up' to and resulting in *512a written contract are, subject to some exceptions, conclusively presumed to be merged therein and, therefore, oral testimony, varying or contradicting the writing, is not permissible.

The principle relied on by appellants is familiar. The object thereof is prevention of fraud. Where the object would clearly not be promoted but application of the principle, arbitrarily, would promote instead of protect against a fraudulent purpose the tendency has been to create an exception. In this way, by a long course of judicial administrative experience, several exceptions have been wrought out and restrictive boundaries placed about the rule, illustrating the maxim that, in general, a good rule admits of good exceptions and, necessarily, limitations. In my own judgment the rule under discussion, beneficent as I concede it to be, has quite as much dignity in its exceptions and limitations as in its entirety. The former vindicates that crowning conception of the law which the broadminded courts constantly struggle to vitalize. XJbi jus, ibi remedium.

One of the limitations mentioned and so often referred to as an exception as to come to be so regarded, is this: Where the writing is but a part execution of an entire verbal contract ; the parties having elected to permit the rest to remain in parol, the question of whether the latter can be established aliunde the writing is outside the general rule as to varying, explaining, or contradicting a written contract by oral evidence, and so the prohibition does not reach it. That, however, is limited by the proviso that the part of the entirety not embodied in the writing must not contradict it, nor the writing clearly indicate that it was intended to embody the entire verbal contract. The court below ruled that the limitation of the principal rule, notwithstanding such proviso, applied to the case. It is conceded by counsel for respondent that such ruling would be sound except for the reference in the deed to personal property, but that such reference clearly indicates an intention to embody in the writing the entire contract as to personalty as well as realty.

*513Whether the circumstance mentioned indicates as claimed, is matter of evidentiary inference. It by no means follows, as matter of course, that because the list of furniture and hotel instrumentalities in particular rooms was mentioned in the deed there was a specific intent to name therein everything of a personal property nature or which might be regarded by either of the parties as personalty but formed a part of the subject of sale. There were many circumstances bearing on the subject, particularly the one that there was personalty in the house other than that owned by defendants and that it was necessary to specify the latter in order that it might be identified from the former. The decision of the trial court on this cannot be disturbed.

Did the evidence as to the scales forming part of the entirety contradict the deed? That may be viewed in two aspects, one assuming that the scales were personalty and the other that they formed a part of the realty. The former, as indicated in the statement, was the viewpoint of the trial court and counsel on both sides below and here.

The condition of a part of an entire verbal contract left in parol while the rest in part execution of the entirety is reduced to writing, being proved, that it must not contradict the writing, should be taken reasonably so as to give efficiency to the limitation stated rather than so narrowly as to afford it no substantial vitality. If we start with a conclusive presumption that the parties to a written contract intended to embody everything of a material nature therein, then proof of anything material in addition would, in a sense, contradict the writing. There must be real contradiction to satisfy the terms of the condition. Where is it in this case ? The deed referred to specific personalty in the house. The verbal testimony did not add to it or take from it, and so, strictly speaking, did not contradict it.

A deed being unilateral in character is commonly held to be a mere part execution of an entire verbal contract within the principle we are discussing. There is no very strong *514presumption, if any, that it contains or was intended to contain all the verbal agreement preceding it. To give it that character, where otherwise it might be so used as to perpetrate a fraud, requires some pretty clear and satisfactory evidence. There are several decisions of this court under somewhat similar circumstances as those here, where the instrument was held to be a mere partial performance of the entire verbal contract. The trial court was guided there by Lathrop v. Humble, 120 Wis. 331, 97 N. W. 905; Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054; Jost v. Wolf, 130 Wis. 37, 110 N. W. 232; Ill. S. Co. v. Paczocha, 139 Wis. 23, 119 N. W. 550.

It is considered that the situation in question is within the principles illustrated in those cases.

The second aspect of this case is so clear, notwithstanding the agreement of counsel and opinion of the trial court that the scales in place were realty, that it might well be decisive of this case regardless-of the rule above discussed. Why did not the scales constitute a fixture? That was suggested on the argument and not answered except by the concession made upon the trial and the theory upon which the circuit judge disposed of the case. But, if the evidence conclusively shows that the scales were a part of the realty when the deed was made, no concession by counsel, even indorsed by the trial court, could change the obvious fact.

Fixtures are realty. They pass by transfer of title to the land unless specifically reserved in the writing. Yerbal testimony excepting them out of the writing would be a plain case of varying, modifying, or contradicting that which the parties saw fit to create written evidence of.

In general, the characteristics of fixtures are actual physical annexation, though this is not absolutely essential, application to the use for which the realty is devoted, and intention to make the annexation a permanent part of the freehold,— the latter being the controlling element. Baringer v. Even*515son, 127 Wis. 36, 106 N. W. 801; E. M. Fish Co. v. Young, 127 Wis. 149, 106 N. W. 795. The intention sometimes conclusively appears from circumstances but is a proper subject otherwise for proof by evidence, whether direct or circumstantial, bearing on the question. The circumstance of being an important feature of an entirety for the use to which the realty is devoted, is often of much, and sometimes of conclusive importance on the question of intention. Here there was the physical annexation and adaptability and very strong circumstantial evidence of intention. Under those circumstances it was most natural for plaintiff to speak of the scales during the negotiations to purchase the property. It was up to the seller then to declare whether she considered the scales a part of the realty or not. According to plaintiff’s evidence and as the jury found the fact to be, she then said that the scales would go with the property. So the trial court proceeded to a conclusion with that understanding.

Such determination and the subsequent action thereon, if not characterizing circumstances and provable by parol, within the rule often illustrated, Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 359, 128 N. W. 43; Colt v. Paulson, 145 Wis. 214, 130 N. W. 55; Hammond v. Capital City Mut. F. Ins. Co. 151 Wis. 62, 138 N. W. 92, — to shut out proof of such circumstance and assume that to be personalty which by all physical indications is realty and thus deprive plaintiff of part of what she purchased, would be the plainest kind of a case of permitting the use of a written contract to perpetrate a fraud which forms one of the most notable exceptions to the rule contended for by counsel for appellants, though one, it may be confessed, which needs to be well guarded and applied only within its narrow field. Jost v. Wolf, 130 Wis. 37, 110 N. W. 232.

If plaintiff’s vendor had not said anything about the scales at the time of the trade they would have passed by the deed not as personalty but as realty seems plain on principle, but it *516is supported by'abundance of authority. Bronson, Fixtures, p. 165, note 46; Arnold v. Crowder, 81 Ill. 56; Dudley v. Foote, 63 N. H. 57; Bliss v. Whitney, 9 Allen, 114; McGorrisk v. Dwyer, 78 Iowa, 279, 43 N. W. 215; Thomson v. Smith, 111 Iowa, 718, 83 N. W. 789.

The only limitation found mentioned in tbe books is in Union Cent. L. Ins. Co. v. Taggart, 55 Minn. 95, 56 N. W. 579 — an authority not followed anywhere that I can find. It went upon the ground that the scales, being within the street, were presumably there by mere revocable permission of the municipality, which in the absence of evidence to the contrary would indicate, clearly, want of intention to create a permanent addition to the abutting property. There is evidence to the contrary here in the declaration of the seller at the time of the trade which, by the plainest principles of good faith, she estopped herself from denying. But the Minnesota case is directly contrary to Dudley v. Foote, supra, and Bliss v. Whitney, supra. In both cases the scales' were located outside the lot line. To the same effect is Redlon v. Barker, 4 Kan. 445, where a hotel sign-post and sign located in front of the hotel and some eight feet outside the lot line was held to be part of the hotel property and to have passed by the deed of it.

It was suggested on the argument that the trial court was influenced to the conclusion that the scales were not a part of the real estate because the description was by metes and bounds, the side towards the scales being so described as to show that it followed the lot line. We shall not spend time with that. It is elementary that a sale and conveyance of realty abutting upon a street, in the absence of clear express indications to the contrary, includes to the center of the street. Elliott, Roads & Streets (2d ed.) § 886; Pettibone v. Hamilton, 40 Wis. 402; Kneeland v. Van Valkenburgh, 46 Wis. 434, 1 N. W. 63. So the scales in this case were located on the land conveyed to plaintiff. She owned it subject to the *517public right to use it for street purposes as completely as she did the land inside the lot line. She having sold and conveyed the property as the jury found she did, evidence that she claimed the scales to be personalty clearly contradicts the deed, while evidence that she then disclaimed on the question is confirmatory instead of contradictory of the writing.

It follows that if the trial court erred as appellants claim,— and it is considered to the contrary,- — it is manifest that the title to the scales passed to plaintiff as part of the land conveyed.

By the Court. — The judgment is affirmed.

Timlin, J. I concur in the result. Baúnes, J. I concur in affirmance on the second grounds only stated in the opinion.