Hoeflinger v. Stafford

38 Wis. 391 | Wis. | 1875

Ryan, C. J.

The respondent sued upon a contract stated to have been made by the appellant with him for the purchase by her of a note of her deceased husband, held by the respondent. The appellant’s answer denies such a contract. And the issue seems to have been tried in the court below upon the theory that there was evidence tending to establish such a contract. The court below not only refused to nonsuit the respondent, not only submitted the issue on the contract to the jury, but expressly charged the jury that the respondent’s evidence, taken by itself, made out a case.

There was some controversy in the evidence upon particulars of the transaction between the parties; but we are unable to discover any evidence tending to prove the contract set up in the complaint.

The respondent himself testified that soon after the burial of the deceased, the appellant told him that she considered his note a sacred debt, and would pay it when she should get her insurance money ; that later she told him that she could not pay it, because she had invested her money in bonds, but wanted to pay it; that be offered to take the bonds, which she said she would give him, but that he declined then to take them because he had not the note with him; and that at her request, he then agreed to give the note to a third person named by her, presumably to be proved as a debt ¿gainst the estate of the deceased. He further testified that having given the note to the third person as agreed, hé wrote a receipt to be given to the appellant for the bonds, expressly “in lieu” of the note. This is, in brief, his entire testimony of the contract; when he next .again met the appellant, she refused to keep her agreement. The bill of exceptions purports to give all the-evidence. We find in it evidence tending to confirm and to contradict the respondent’s account of the agreement, but none to vary its character.

It is quite too plain for discussion that the agreement given in evidence was an .agreement in express terms to pay the note, and not to buy it; to pay it, because it was a sacred debt of the deceased. If it may be tortured into a contract to purchase the note, so may many a contract to pay the debt of another be changed into one to purchase the debt.

The only suggestion made by the ingenious counsel of the respondent, to aid us in transmuting this express agreement to .pay into an implied agreement to buy, is that the note, if paid, would not be a claim against the estate of the maker, whereas the parties provided for its being proved as such ; that therefore they must have intended to keep the note alive, and have intended a contract to buy, and not to pay; though they expressed a contract to pay and not to buy. Divinaiio, non interpretation qucs. omnino recedit a litera. Whatever notions the parties may have had about the legal effect of the payment of the note by the appellant, on the note itself as against the estate, it appears very certain that no misunderstanding of the law could operate to vary the terms and object of the agreement which they expressly made. They may have mistaken the consequences of their contract, but that cannot operate to change the contract made into another and different. There is no uncertainty in the terms of the agreement proved for such a circumstance to explain; no uncertainty for any rule of construction to aid. The terms employed by the parties are clear and explicit.

• It is a parol contract to pay the debt of another, void under the statute of frauds. McDonell v. Dodge, 10 Wis., 106. And it was error for the court below to overrule the appellant’s motion for a nonsuit, to submit to the jury the question whether the contract set up in the complaint had been proved, and to instruct the jury that the respondent’s evidence made out his case.

By die Court. — The judgment of the court below is reversed, and the cause remanded for a new trial.