Lynch v. Henry

75 Wis. 631 | Wis. | 1890

Oassoday, J".

The principal controversy in this action was as to whether there had been any modification of the written contract by parol, as alleged in the amended complaint. The verdict of the jury is to the effect that there' had been such modification. A careful examination of the printed case convinces us that the evidence on the part of the plaintiff is sufficient to support such finding.

It is claimed that such parol modification or agreement was not based on any new consideration, and for that reason was void. It has frequently been held b}7 this court, in effect, that the consideration existing in such original execu-tory contract is deemed imported into such new parol modification or agreement, and hence that such new agreement, when made, becomes binding upon the parties without any new consideration. Brown v. Kverhard, 52 Wis. 205; Kelly v. Bliss, 54 Wis. 191; Snell v. Bray, 56 Wis. 159; Magill v. Stoddard, 70 Wis. 78; Ruege v. Gates, 71 Wis. 638; Bingham v. Insurance Co. 74 Wis. 503. The right to modify a prior written agreement by parol is too firmly established to be seriously questioned. This, of itself, disposes of the question as to the admissibility of such parol evidence.

It is claimed that the plaintiff’s order to Mrs. Welter, upon the defendants, to pa}7 her “ all moneys due ” him after labor pajr-rolls were paid, was an assignment of the plaintiff’s cause of action herein to Mrs. Welter; and that the payment to her and her receipt “ in full for the above account, and all demands except $350 held subject to garnishee proceedings,” was conclusive upon the plaintiff in satisfaction of the same. But there is plenty of evidence in the record to the effect that such order, payment, and receipt had no reference to the amount due to the plaintiff under such parol modification or agreement, for the grubbing done by him in the track-bed between slope-stakes, over excavations, and which was to be paid for outside and entirely separate from the excavations themselves, and at the rate of $1.25 for each square rod of such grubbing. The trial court hold, and we think rightly, that such parol evidence was admissible. The description of the subject matter referred to in the order and receipt, standing by itself, was incomplete, uncertain, and ambiguous, and hence extrinsic evidence was admissible to aid in their construction and rightful application. Since such parol evidence was more or less in conflict, the truth of the matter was necessarily for the determination of the jury. The matters in controversy were fully and fairly submitted to the jury. There are some exceptions to the charge, but they are sufficiently disposed of by what has already been said.

By the Oourt.— The judgment of the circuit court is affirmed.