Oconto Chamber of Commerce v. Grandall

175 Wis. 447 | Wis. | 1921

Eschweiler, J.

The defendant urges that there is not sufficient proof that the plaintiff, the Oconto Chamber of Commerce, which assumed the duties and functions of the committee named in the subscription list quoted above, had sufficient title or interest in such agreement to support its bringing this action. No formal writing or assignment appears in the record as having been executed by the committee to the plaintiff, yet we think the facts in this case, which we do not deem necessary to recite in detail, were sufficient to show that there was in legal effect a sufficient assignment of whatever interest the committee had in the subscriptions. Such an assignment need not be in writing. Arpin v. Burch, 68 Wis. 619, 623, 32 N. W. 681; Baillie v. Stephenson, 95 Wis. 500, 502, 70 N. W. 660; Skobis v. Ferge, 102 Wis. 122, 129, 78 N. W. 426.

The obligation in the subscription agreement of June 9th included, by its express language, the sum expended for the “purchase price of a. building and site.” No contention can be successfully made that there was any latent ambiguity in that phrase. It is plain, certain, and of ordinary usage. Parol evidence was proper to show, and only to show, that it fitted the Turner Opera House property and the $3,500 paid therefor. It also met and fitted exactly with the first provision in the contract with the Knitting Mills Company as above recited. ■

The court, however, permitted, over defendant’s objection, parol evidence to be received that in addition to such purchase for $3,500 there was a sum of $5,000 expended in improving and changing such building after its purchase and to make it practicable for factory operations, and that such additional sum added to the $3,500 required an application of the entire amounts subscribed.

Such sum of $5,000 was, however, plainly separate and distinct from the obligation for the purchase of the real property and clearly not included therewith.

The holding of the court was contrary to the salutary and well recognized rule that when parties reduce their agreements to writing the measure of their obligations is, when as plainly expressed as here, to be confined to what is there stated and cannot be added to by parol. Miley v. Heaney, 168 Wis. 58, 78, 169 N. W. 64; State ex rel. Att’y Gen. v. Steber, 161 Wis. 576, 580, 155 N. W. 146; Kilpinski v. Bishop, 143 Wis. 390, 127 N. W. 974; Gilbert v. Stockman, 76 Wis. 62, 44 N. W. 845; Taylor v. Davis, 82 Wis. 455, 458, 52 N. W. 756; Jones, Evidence (2d ed.) § 434.

There is no room here for the application of the rule that parol evidence may be received to raise an ambiguity even where the language of the writing seems clear on its face, and then to explain such ambiguity, as in cases like Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 128 N. W. 43; Hammond v. Capital City Mut. F. Ins. Co. 151 Wis. 62, 67, 138 N. W. 92; Radtke v. Rothschild W. P. Co. 158 Wis. 271, 276, 148 N. W. 866; and as stated in Jones, Evidence (2d ed.) § 455.

Defendant, however, paid but $20 on his subscription. It is conceded' that he is indebted for his proportionate share of the $3,500 paid for the Turner Opera House property. Such share would be $43.85. The difference between that and the $20, or $23.85, is the amount justly due and owing from him to the plaintiff. That amount of $23.85, instead of $80, should be the measure of damages, with interest from the commencement of the action, there being no proof as to any particular date of a prior demand.

The plaintiff, of course, would be entitled to costs in the court below, and defendant would necessarily be entitled to costs here.

By the Court — Judgment reversed, with directions to enter judgment in accordance with this opinion.