143 Wis. 347 | Wis. | 1910
Lead Opinion
Tbe first error assigned is that tbe contract was in writing, therefore parol evidence thereof was improperly admitted.
It may well be admitted, for tbe purposes of this case, that tbe contract was in writing. • Tbe trial court, as we understand tbe record, so held and admitted evidence to aid in construing tbe language used in tbe paper.
It is argued at considerable length that tbe agreement is: unambiguous, looking at tbe words thereof only, and that there is no room for operation of rules for construction. It seems to be thought that, unless ambiguity can be discovered in tbe language of tbe paper, looking at that only, it must,, regardless of circumstances, be taken in its literal sense as expressing what tbe parties agreed to. There is no such rule,, though it may be there is room for one to be misled in respect to tbe matter as be reads tbe numerous discussions found in
Tbe very familiar rule is often stated and applied tbat oral testimony is not admissible to contradict or vary a written contract. It is perfectly consistent with tbat other rule, likewise often stated and applied, tbat oral testimony is admissible for tbe purpose of applying tbe contract to tbe subject with which it deals, and, in case of ambiguity then .appearing, to establish tbe facts and circumstances under which tbe agreement was made in order tbat tbe language thereof may be read in tbe light of tbe environment at tbe time tbe parties chose such language to express their intention.
It is said tbat, when tbe language of a contract is plain, it is not open to construction. Tbat is true in tbe general sense, but, unless viewed broadly, it does not convey accurately tbe full scope of tbe field where rules for construction are applicable. Tbe words of a contract, in themselves, may be plain, yet when applied to tbe situation with which it deals, not plain, tbe literal sense leading to such unreasonableness as to suggest tbat tbe parties probably did not so intend. In so applying tbe contract oral testimony is generally necessary and permissible to tbe end tbat tbe full scope of tbe situation dealt with may be observed. As to when tbe language of a contract, in its literal sense, is to be taken as expressing tbe intention of tbe parties, is correctly indicated by Vattel’s rule which has been often cited by this and other courts: “When tbe meaning is evident, and loads to no absurd conclusions, there can be no reason for refusing to admit tbe meaning which tbe words naturally present.” Note tbe language “when tbe meaning is evident.” Tbe meaning is not evident when, if looking at tbe subject matter, it is so unreasonable as to appear unlikely tbat tbe parties so intended. To enable one to read tbe contract in tbe light of tbe subject matter and tbe effects and consequences, obviously evidence of facts and circumstances, not mere conversations, leading up to and
“As it is a leading rule, in regard to written instruments, that they are to be interpreted according to their subject matter, it is obvious that parol or verbal testimony must be resorted to, in order to ascertain the nature and qualities of the subject, to which the instrument refers. Evidence which is calculated to explain the subject of an instrument is essentially different in its character from evidence of verbal communications respecting it. Whatever, therefore, indicates the nature of the subject, is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive if considered in the abstract.”
In view of the elementary rule stated this court has said many times — and in perfect harmony with the idea that contracts which are plain are not open to construction, and in harmony with the idea that parol evidence is not admissible to contradict or vary a written contract, and in like harmony with the idea that mere conversations between parties respecting the contract leading up to and inclusive of the making thereof, are not admissible either to vary or explain it; Steele v. Schricker, 55 Wis. 134, 143, 12 N. W. 396, — ambiguity calling for construction may as well appear from language clear in itself, but leading to some absurd result when applied literally to the situation with which it deals, as from uncertainty of meaning upon its face. Corbett v. Joannes, 125 Wis. 370, 104 N. W. 69. When it is said, — • where there is ambiguity in a contract, either in its literal sense, or when it is applied to the subject thereof, 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
True, the distinction sometimes is so shadowy between application of the rule, that “oral conversations had between the parties to a written contract” before and at the time of the making thereof “cannot be received as explanatory of the writing,” and the rule that the contract may be applied to its subject matter by oral evidence, as.in Nilson v. Morse, 52 Wis. 240, 9 N. W. 1, and many other cases, and any ambiguity thus disclosed explained by resort to such evidence of the facts and circumstances characterizing the making of the agreement — that one is liable, at least without careful analysis, to think there is a conflict,' — as in case of some term having been used in the contract, reasonably susceptible of either of two meanings, and proof was held proper to show, — by what the parties said when the agreement was made, — that they attributed thereto a particular meaning. Ganson v. Madi-
The subject treated was reviewed at some length by this court in Boden v. Maher, 105 Wis. 539, 81 N. W. 661, and, thinking to minimize seeming difficulties in the application of rules for construction, the court said:
“Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to see what the parties to a contract intended to express by the language adopted in making it, is quite another thing. The former is not permissible. . . . The latter is permissible and is often absolutely essential to show the real nature of the agreement. . . . Both rules are elementary and do not conflict in the slightest degree with each other. One prevents a written contract from being varied by parol evidence either in regard to what was said at the time it was'made or prior thereto; the other aids in determining what the contract is when its language, either in its literal sense or as applied to the facts, is obscure. The one is a rule to preserve the contract as expressed in the writing; the other is a rule of construction to determine what the contract, as expressed, is, it being kept in mind that the mutual intention of the parties, so far as the same can be ascertained, governs within the reasonable meanings of the language they chose to express it; and that rules of*357 ■construction to discover it are not to be resorted to unless there is some ambiguity to be cleared up. A failure to keep in mind the wide distinction between varying a contract by parol evidence and resorting to such evidence in aid of its construction often leads to error.”
We might well add to the foregoing, as a conclusion evolved from the logic of Yattel’s rule, so often referred to, and the general application of it: Since a contract may be uncertain in the words themselves when, applied to the subject matter thereof though not otherwise uncertain, parol evidence to aid in making such application is proper. Such evidence for that direct purpose is one thing, while evidence merely to create ambiguity is quite another. The former is admissible; the latter is not. That does not militate against the rule that if the legitimate effect of the application is to disclose ambiguity, it opens the door for construction, including in •aid thereof, introduction of evidence of the circumstances characterizing the contract and in view of which it was made. Thus it is said: Courts may ignore the literal sense of words wheré there is no uncertainty of expression (in the words by themselves) to clear up obscurities and avoid absurd consequences. State v. Railway Cos. 128 Wis. 449, 108 N. W. 594. It is only where the words are “plain, both in them•selves and when applied to the subject with which they deal,” that they “must be taken according to their ordinary import,” no other meaning being added thereto or taken therefrom. Huber v. Martin, 127 Wis. 412, 429, 105 N. W. 1031, 1135. Otherwise, “The contract may be read very ■different from its literal sense” “so long as its reasonable scope is not departed from, if necessary to give effect to what the minds of the parties really met upon. That does not involve any modification of the contract,” but, as said in Zimmer v. Settle, 124 N. Y. 37, 42, 26 N. E. 341, “has relation to the application of the language used to the subject within the contemplation of the parties as represented by the situ
Applying the foregoing to the contract in question, ambiguity is readily observed. The language: “To be shipped at once to,” etc., “Via Ill. Oent. R. R.,” by itself would indicate that shipments from the seller’s loading point to the named destination were contemplated. But the situation dealt with by the writing, as disclosed by legitimate evidence, is that the Illinois Central Railroad did not reach the loading place at all, so the transit, necessarily, had to commence on the Chicago & Northwestern Railway, which, only, reached such loading place. Again, though not indicated in the statement of facts, the calls for shipments to various points “Via. Ill. Cent. R. R.” were associated with calls for shipments “Via Wabash R. R.” and shipments “Via A., T. & S. F. R. R.,” neither of which roads reached anywhere near the contemplated loading place, showing, quite clearly, that “via” any particular road, where such road did not reach the loading point, was not used in the literal sense. That situation could only be made to appear by evidence aliunde the writing. When disclosed, ambiguity in the contract appeared at once. So it became necessary to learn the meaning of the language in view of the situation.
If there were nothing suggesting ambiguity but the circumstance mentioned, “Via Ill. Cent. R. R.” might mean by way of that railroad so far as practicable, and otherwise by way of the only road reaching the loading point, to wit, the Northwestern road. But the obscure words refer back to and are characterized by the opening words of the writing, “As per your conversation with Mr. Campbell to supply ice' at the rate of thirty cents per ton,” etc., “we herewith send you the following orders,” etc. On the face the term “As per your conversation,” etc., might refer to the mere price for the ice, suggesting that the whole conversation was embodied in the writing, or quite as well refer to stated condi
It follows that errors assigned on the admission of evidence to prove the conversation referred to in the writing must be overruled. The evidence tended to show that, in such conversation, the price of thirty cents per ton .was made on condition of the ice being forwarded out of Madison over the Chicago & Northwestern Eailway, and that reference to such con
The disputed questions of fact involved in construing the contract being found in respondent’s favor, upon evidence which was competent, as we have seen, the conclusion which resulted in the judgment followed necessarily.
The treatment of this case has been quite general, since substantially all appellant’s complaints turn on whether the contract is ambiguous, and whether ambiguity in an agreement calling for construction can be legitimately disclosed by applying the writing by aid of evidence aliunde to the situation with which it deals, when, looking at the particular vital words themselves, there is no ambiguity, and whether a conversation had prior to, or at the time of making the writing, may be so referred to therein as to make stipulations and conditions thereby made and in the light of which the writing was drawn, fall within the field of circumstances provable in aid of construction. We have been constrained, in the light of familiar principles, to resolve such propositions in respondent’s favor.
By the Oowrf. — The judgment is affirmed.
Dissenting Opinion
The following opinion was filed October 22, 1910:
(dissenting). I desire to record my views on some matters treated in the opinion of the court, without indulging in any lengthy statement of the reasons therefor.
1. I think there was no ambiguity in the writing in so far as it related to the shipments involved in this suit. The Illinois Central Railroad extended from Madison to the points at which the ice was to be delivered. The plaintiff was directed to .ship the ice from Madison to these points “via” that line
2. If the writing stated definitely, as I think it did, that the shipments should be made over the Illinois Central from the point of origin to that of destination, the fact that it referred to a prior oral conversation would not admit of parol evidence to show a prior agreement was made to the effect that the shipment should be made in some other way. "Where the subject of the oral conversation is definitely covered in the subsequent written agreement, reference to the fact that a verbal talle was had does not take the writing out of the rule and permit one of the parties to testify to. an entirely different contract. Nearly all contracts are the result of verbal negotiations, and reference thereto is immaterial so long as it is apparent that it was not the intention of the parties that some part of the agreement should rest in parol.
3. It is said in the opinion:
“To enable one to read the contract in the light of the subject matter and the effects and consequences, obviously evidence of facts and circumstances, not mere conversations, leading up to and concurrent with the making of the contract, is often necessary.”
If by this statement it is intended to state as a rule of law that prior conversations are not admissible to explain an ambiguity in a contract, I disagree with the proposition. The contrary rule was established in Ganson v. Madigan, 15 Wis. 144, which was approved by this court in Burton v. Douglass, 141 Wis. 110, 116, 123 N. W. 631, wherein a number of other cases approving of the rule in Ganson v. Madigan are approved. If the court means that such conversations cannot
4. The mere fact that a contract may appear unreasonable-to this court in view of the things that have transpired since-it was made, or even in view of the situation of the parties when it was made, is not in itself a sufficient reason for holding the contract to be ambiguous. People have the privilege to and as a matter of fact do frequently make foolish contracts.
5. The integrity of written contracts should be preserved. Writings embodying the agreements of parties and signed by them seldom lie. Living witnesses often do, particularly when it is to their interest to do so. It is charitable to say that perhaps frequently they are only mistaken.
6. I think it is unfortunate to extend the rule of Johnson v. Pugh, 110 Wis. 167, 170, 85 N. W. 641, and many other-cases, as to when parol evidence is admissible to vary or even to explain a written contract, and, if I have a correct conception of what is decided in this case, many things are said which are not in harmony with that case.
7. Where a contract does not express the true agreement of parties, resort may be had to a court of equity to reform it in. an appropriate proceeding brought for that purpose. I think the orderly proceeding of going into such a court for such a purpose should be continued instead of attempting reformation by importing ambiguity into a contract because it may appear unreasonable or even ridiculous, and then interpreting the contract as meaning something different from what its; words plainly imply.