86 Wis. 433 | Wis. | 1893
The plaintiff’s right to recover in this case depends entirely upon whether, as against the express and unambiguous terms of the contract of sale and the deed of conveyance executed to carry it into effect, he can be allowed to show by parol evidence that the contract was for the purchase and conveyance of 160 acres of land, and not merely the tracts specifically described, and consequently the quantity of land only which these tracts might contain,
The contract and deed clearly state a sale and conveyance of what may be aptly termed as a'“ lump quantity ” for a definite gross sum, and, as there was no allegation of
In most of the cases relied on by the respondent’s counsel, there does not appear to have been any such preliminary agreement in writing, particularly in the case of Cardinal v. Hadley, 158 Mass. 352. This was a case of error in'computing the quantity from known measurements. But, considering the case solely upon the basis of the deed and admissibility of parol evidence, the rule seems to be that evidence may be given of a consideration not mentioned in a deed, provided it be not inconsistent with the consideration expressed in it. 1 Greenl. Ev. § 285, and cases in note h. But whatever the rule deducible from the cases may be, in respect to the extent to which parol evidence may be admitted to explain the consideration clause of a deed, the case seems quite clear, on other grounds. No doubt such evidence is admissible, so far as the clause operates as a mere receipt for the consideration money, but, as applied to the instrument in a contractual aspect, a different rule seems applicable. The consideration of the deed in this case may be properly said to be the execution and performance of the mutual obligations of the parties in a previous written agreement between them under seal, in relation to the same subject matter; and the true legal effect of the deed is, no doubt, that it conveys only the lands which the tracts described in fact contain. McEvoy v. Loyd, 31 Wis. 145. The language of the contract in this respect is identical with that of the deed, and in the absence of fraud or mutual mistake is conclusive as evidence upon the question of what the contract in fact was, although it is true, as already stated, that in a general sense it has been merged in the deed, so that it cannot now be .the foundation of an
In the case of Howes v. Barker, 3 Johns. 506, where B., by articles of agreement, covenanted to sell and convey to H. a tract of land for £9 per acre, and a deed wras accordingly executed, and the purchase money paid according to the quantity-of acres expressed in the deed, it was held that parol evidence was not admissible to show that there was a mistake in the quantity mentioned in the deed, and that an action for money had and received, to recover back the money paid for the number of acres alleged to be deficient, was not maintainable. This conclusion is sup ported by very many cases, and among them Winchell v. Latham, 6 Cow. 690; Baltimore P. B. & L. Society v. Smith, 54 Md. 187; Williams v. Hathaway, 19 Pick. 387; Miller v. Fichthorn, 31 Pa. St. 258; Harbold v. Kuster, 44 Pa. St. 392.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.