110 Wis. 167 | Wis. | 1901
The principal complaint made by appellant’s counsel is that the trial court refused to allow evidence in his behalf of the circumstances leading up to and attending the making of the building contract and what, was said between the parties. Counsel seem to have an erroneous idea of the rule they invoke. It is not as broad as. they suppose, nor does it apply except where there is room for judicial construction. “We understand,” say counsel, “ that testimony of the circumstances surrounding and leading up to the making of a written contract is always admissible, not for the purpose of changing or varying the terms of the written contract, but for the purpose of putting the court in the circumstances of the parties at the time of the making of the contract.” Not so! Where there is no ambiguity in the contract, either in its literal sense or when it is applied to the subject thereof, it must speak for itself entirely unaided by extrinsic matters. Where such ambiguity does exist, then evidence of the circumstances under which the contract was made is proper to enable the court in the-light thereof to read the instrument in the sense the parties intended, if that can be done without violence to the rules, of language or of law. Sigerson v. Cushing, 14 Wis. 527; Wilson v. Morse, 52 Wis. 240; Lyman v. Babcock, 40 Wis. 503; Nash v. Towne, 5 Wall. 689; Merriam v. U. S. 107 U. S. 437; Minnesota L. Co. v. Whitebreast C. Co. 160 Ill. 85. There was no claim in this case that there was need for judicial construction, therefore, obviously, the evidence offered was properly rejected. The meaning of the language used in the contract was free from obscurity, hence the reason why it was framed as it was has no significance whatever.
As before indicated, the rule of construction relied upon is not as broad as claimed. It is limited to proof of the situation of the parties and the circumstances characterizing the making of the contract. It does not extend to mere
“ Oral conversations had between the parties to a written contract cannot be received as explanatory of the writing. Such conversations do not come within the rule that ‘ you may show the facts surrounding the parties at the time, and the situation in which they were placed in order to interpret the meaning of what they say in the contract.’ Professor Greenleaf says: ‘ Evidence which is calculated to explain the subject of an instrument is essentially different in its character from evidence of verbal communications respecting it.’ Conversations between the parties previous to making the written contract are clearly verbal communications respecting it, and must be excluded as such.”
The only other complaint made is that the verdict is contrary to the evidence because such evidence was all one way to the effect that there was no defect in the building when respondent took possession thereof, and that the parties made full settlement of all matters relating to it. We do not so read the evidence. Respondent testified positively that he complained of defects in the building when he settled with appellant, and that it was then agreed between them that appellant would remedy such defects. He said: ‘ When I settled up with him he and I went into the cellar. He said there was not support enough. I did not say anything. I told him I wanted some more,— wanted him to fix it, which he said he would. Since that I hate waited relying on his promise. I have spoken to him every year since about it. When he agreed to fix the building in 1893 he said there was not support enough.’ There was more evidence of the same nature. True, it was controverted, and there were circumstances tending to discredit it, but the jury believed it and concluded that the settlement with ap
By the Court.— The judgment is affirmed.