188 Wis. 394 | Wis. | 1925
The trial court expressed the view that the writings containing the warranties were ambiguous in their terms and that extrinsic evidence could be received, not to contradict the terms but to explain their meaning and show the real intention of the parties. Counsel for the appellant cite many authorities to the well settled general rule that, in the absence of fraud or mistake, parol evidence of contemporaneous oral agreements between the parties is inadmissible to contradict, alter, or modify the written contract. But there is a qualification as old as. the rule itself to the effect that extrinsic evidence is not necessarily to be rejected merely because the instrument is of such doubtful meaning on its face as to admit of more than one interpretation. It is often essential, where the meaning of the writing is doubtful or equivocal, to receive parol evidence to show its real nature. We shall cite only a few of the many decisions of this court which point-out the difference between evidence to contradict or vary a contract and evidence to
. In the instant case the appellant’s counsel do not argue that it was not the intention of the parties that the furnace should, be adequate to heat the house in question. They do not argue that the warranties were too vague and uncertain to be of any effect. It might be quite difficult to lay down any rule of universal application as to the meaning of the words “good heating service.” In England and the countries of Continental Europe temperature varying from sixty to sixty-five degrees might be considered adequate. A furnace which might render good service in the climate of California might be entirely inadequate in Wisconsin. We agree with the trial court that the words in the contract of warranty were ambiguous in their, meaning; at least until explained they were uncertain as to the degree of heat intended to be furnished.
No rule is more familiar than this: that in determining the meaning of a writing which is ambiguous it is proper to receive evidence to ascertain the situation and surrounding circumstances in order that the court may put itself in the place of the parties and then ascertain their intention. For example, it was clearly competent in this case to prove the kind of a building, the number of rooms, their relation to each other, and the purposes for which the parties knew the premises were to be used. It is a closer question whether, in the case of such a contract, it is permissible to prove the conversations of the parties when the contract was being negotiated. There is undoubtedly authority holding that such conversations should not be received. On the other hand, it has frequently. been held that where the contemporaneous conversations are not offered and received to change or vary the agreement, but are admitted in connec
In an early leading case which has been often cited and quoted but never overruled, the ambiguity or uncertainty related to the meaning of the word “team.” In the opinion by Mr. Chief Justice Dixon it was said:
“The word ‘team,’ as used in the contract, is of doubtful signification. It may mean horses, mules, or oxen, and two, four, six, or even more of either kind of beasts. We look upon the contract and cannot say what it is. And yet we know very well that the parties had some definite purpose in using the word. The trouble is not that the word is insensible and has no settled meaning, but that it at the same time admits of several interpretations, according to the subject matter in contemplation at the time. It is an uncertainty arising from the indefinite and equivocal meaning of the word, when an interpretation is attempted without the aid of surrounding circumstances. It appears on the face of the instrument, and is in reality a patent ambiguity. The question is, Can extrinsic evidence be received to explain it? We think it can.” Ganson v. Madigan, 15 Wis. 144.
The opinion then refers to the fact that there is an intermediate class of cases partaking of the nature of both patent and latent ambiguities and comprising instances where the
“If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded.” Ganson v. Madigan, 15 Wis. 144.
See, also, Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 359, 128 N. W. 43; Excelsior W. Co. v. Messinger, 116 Wis. 549, 553, 93 N. W. 459; Rib River L. Co. v. Ogilvie, 113 Wis. 482, 89 N. W. 483; Boden v. Maher, 105 Wis. 539, 81 N. W. 661; Burton v. Douglass, 141 Wis. 110, 123 N. W. 631.
The appellant’s counsel objected to the admission as evidence of the ordinance of the city of Milwaukee establishing a standard of heating; in rooming houses. No reference to this ordinance is made in the findings and it does not appear, whether or not it was considered important. Defendant was engaged in Milwaukee in selling furnaces. It does not seem unreasonable that the existence of such an ordinance should have been considered by the defendant and that it was a circumstance throwing some light on the intentions of the parties. As we conclude that there was sufficient other testimony to establish such intention, this question need not be decided.
A large amount of evidence was received bearing on the adequacy of the furnace. This included expert testimony produced by both parties, and their, opinions were given as to whether the system was sufficient to adequately heat the premises having in mind that “adequately” means seventy degrees in temperature outside as low as ten degrees below zero. Although defendant produced the greater number of witnesses the court found for the plaintiff on this issue. In this connection it is important that, although
We find no error as to the allowance of consequential damages. It was undisputed that the roomers left because the rooms were not properly heated, and the consequent loss to the plaintiff was established by the proof.
By the Court. — Judgment affirmed.