50 Wis. 322 | Wis. | 1880
The following opinion was filed September 21, 1880:
The rule that proof of antecedent or contemporaneous verbal agreements between the parties cannot be received to alter or control their written agreement, was applied in Underwood v. Simonds, 12 Met., 275. The action was by the payee against the maker of a promissory note, payable absolutely by its terms; and it was held that evidence was not admissible, as a defense, that the maker took property of the
The question to be determined here is, whether the above rule is applicable to this case. Parol evidence is, undoubtedly, competent to show a total or partial failure of the consideration of a note or other written contract; or, where only part of the contract is reduced to writing, to prove the portion which the parties have allowed to rest in parol; or to contradict a mere receipt which does not purport to contain the contract out of which it arose; or to show the manner in which,
The admission of parol evidence for the various purposes above indicated does not constitute an exception to the general rule first stated. It is received on the ground that the agreement to which it relates has not been reduced to writing. If the parties have reduced their contract, and the whole of it, to writing, and the instrument is free from ambiguity or uncertainty, the courts have universally applied the rule, and excluded parol testimony to vary the terms of the contract. No court has done so with greater fidelity than has this court. The following are some of the later cases in which the rule has been applied: Richardson v. Johnsen, 41 Wis., 100; Knox v. Clifford, 38 Wis., 651; Charles v. Denis, 42 Wis., 56; Eaton v. McMahon, id., 484; Lowber v. Connit, 36 Wis., 176; Yenner v. Hammond, id., 277; Crawford v. Earl, 38 Wis., 312; Cooper v. Cleghorn, ante, p. 113.
Of course, the foregoing remarks have no application to an action wherein it is sought to avoid a written contract or obligation for fraud in its inception, or to actions brought to correct mistakes in such instruments. To prove the fraud or mistake, parol evidence is freely received, and necessarily so. But, as a sort of compiensation for this apparent departure from the general rule, the existence of the alleged fraud or mistake can only be established by the most clear and convincing evidence. As it is put in some of the cases, it must
The learned counsel for the defendant argued, if we understood him correctly, that proof of the alleged guaranty by the plaintiff that the land which he covenanted to convey to the defendant contained three million feet of pine lumber, and his agreement that he would pay the defendant two dollars and a half per thousand feet for the shortage, if any, together with proof of the shortage, was merely showing a partial failure of consideration, which may always be done by parol evidence; also that the whole contract was not reduced to writing; and some stress is laid upon the fact that the defendant did not sign the written instrument which contains the terms of the agreement; that was signed by the plaintiff alone.
It is settled in this court that the acceptance, by the grantee, of a deed or land contract executed by the grantor alone, binds such grantee. Lowber v. Connit, 36 Wis., 176; Hutchinson v. Railway Co., 37 Wis., 582, 601. Hence, the instrument signed by the plaintiff alone, and accepted by the defendant, is as much the written agreement of the latter as it is of the former.
The rule which allows the malcer of a promissory note to show, in an action upon it, a failure or partial failure of consideration, is not sufficiently broad to cover this case. Here we have written instruments which set out particularly the consideration of the notes in suit, to wit: the assignment of notes and mortgages, and of a contract to convey lands and to sell timber upon other lands. The right to prove a failure of consideration, would admit evidence of the failure of any consideration expressed in the writings, as that the title to any of the property thus sold or assigned had failed, but does not go to the extent of allowing proof of an additional consideration not expressed in the writings, and a failure thereof. To íiold otherwise would be to destroy the rule which prohibits parol evidence to contradict or vary written instruments. The in
The case of Lowber v. Connit, supra, is very similar to this case in its facts, and'fully sustains the above views. The case above quoted, in 12 Met., is also authority against the admission of evidence that the agreement of the parties contained an important condition not inserted in the writings. The cases to the same effect are very .numerous, but it is not deemed necessary to refer specially to more of them. Many of them are cited in the foregoing cases. We conclude that the parol evidence to show that the plaintiff undertook that the land should yield 3,000,000 feet of lumber, and promised to pay, at a specified rate, for the shortage, was erroneously admitted. It is manifest that the recovery would have been much greater had this evidence been ruled out. There must therefore he another trial.
By the Court. — Judgment reversed, and cause remanded for a new trial.
A motion for a rehearing was denied November 10,1880.