81 Wis. 366 | Wis. | 1892
The policy covers property located on different farms several miles apart. The question on the former appeal was whether the policy was divisible or not. The circuit court held it indivisible; and because the plaintiff had sold and conveyed one of the insured buildings without the consent of the defendant company, in violation of a •stipulation in the policy, the court nonsuited him. On the appeal .from the judgment of nonsuit this court held that, because the insured house which the plaintiff thus sold and conveyed was located five miles distant from the insured property which was burned, because the risk upon the latter property was entirely unaffected by such conveyance, and because the risk was distributed in the policy to the insured property in the different locations, the contract of insurance was, ¶rima facie at least, divisible, although one sum was specified in the policy as the premium on all the insured property. 77 Wis. 87. That decision is res adjudi-eata in the case, and must be adhered to. The grounds of the decision are quite fully stated in the opinion on that appeal, and require no repetition here.
It is claimed by counsel for defendant that the opinion
Whether parol testimony is admissible 'to show that a written contract which we have held to be on its face divisible is in fact indivisible because of an understanding be-tweén the parties when they made it, which is not expressed in the writing,was not determined or suggested on the former appeal and will not be determined here. But it seems quite apparent that the admission of such testimony comes dangerously near violating the rule that parol testimony of antecedent negotiations or agreements is inadmissible to contradict or vary the terms of the written contract. If, without fraud, the writing fails to express the real agreement of the parties, the safer course is to apply to the court for a reformation thereof. In such a proceeding the parol testimony would be admissible.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.