Rathmann v. Schwanz

170 Wis. 459 | Wis. | 1920

Siebecicer, J.

The civil court’s judgment in dismissing the principal action commenced by plaintiff to recover damages for breach of contract includes a determination of the issues in the’ attachment proceedings. Plaintiff’s appeal from this judgment carried the attachment proceeding to the circuit court with the principal action.

The circuit court granted a new trial in the action upon the record on the ground that the evidence offered by the plaintiff on the trial of the issues in the principal action and on the trial of the issues presented by the special traverse iti the attachment proceedings was improperly excluded.

On the trial of the principal action it appeared that the defendant and plaintiff on August 2, 1917, negotiated for a sale of an Available motor truck to defendant at a stipulated price, and fixed the terms of payment of the purchase price. The plaintiff testified that this sale was made by him personally as sole trader in the city of Milwaukee of Available motor trucks; that he was engaged in buying these trucks from the manufacturer and selling them to customers in Milwaukee; that the sale of the truck to the defendant was a sale by him personally to defendant, and that the written memorandum of the sale in the name of the Available Motor Truck Company to defendant was intended and mutually understood, when he and defendant signed it, to be a contract of sale by him personally to defendant. The defendant testified that when he made the written contract for the purchase of the truck he made it with the plaintiff as agent of the Available Truck Company and that the writing was exec'uted to evidence such purchase. Production of the written memorandum discloses on its face that it is in form a contract between the Available Motor Truck Company of Chicago, Illinois, and defendant, specifying the kind of truck defendant ordered, fixing the purchase price and terms of payment, and specifying certain guaranties, and is signed as follows: “Available Truck Company by Louis Rathmann. Approved, ——. Accepted August 2, 1917. By H. H. Schwanz." At the foot of the memorandum it stated that to make the contract binding upon the seller it must be approved by the president of the Available Truck Company.

We have examined the evidence and find the trial court is well sustained in its conclusion that there is no evidence to show that there Was a subsequent agreement between the parties to this action modifying the terms of this written agreement and that the record does not sustain the circuit court in its conclusion that the trial court erred in its ruling on the admission of evidence. Did the circuit court properly hold that the trial court erred in holding that the oral testimony offered by plaintiff to show that the written memorandum of sale ,does not embody the contract actually made by plaintiff and defendant for the sale of the truck is properly admissible in this action by plaintiff for a breach of contract for the sale of the truck? There is no dispute that the writing was in fact executed by the parties, that it shows on its face that it is a contract between the defendant and the Available Truck Company of Chicago. It is an elementary principle of the law that the negotiations and conversations between parties leading up to and including the making of a written contract are not admissible evidence to contradict and vary it, where the writing plainly purports to contain the entire contract, in the absence of accident, fraud,' or mistake of fact. 10 Ruling Case Law, p. 1016, § 208. If such a writing is signed by a person who in fact acts as agent for another in executing the agreement, it may be shown by parol that it was signed for the undisclosed principal. Such evidence is not regarded as contradicting the writing. Stowell v. Eldred, 39 Wis. 614. "But, on the other hand, to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done.” Weston v. McMillan, 42 Wis. 567.

The contract before us shows on its face that the Available Truck Company of Chicago is the contracting party for the sale of the truck to defendant. The offer to show by parol that plaintiff was in fact the contracting party instead of the Available Truck Company was properly rejected by the trial court upon the ground that it would contradict the writing in question. The record sustains the tidal court in holding that the Available Truck Company is the contracting party for the sale of the truck to defendant and that plaintiff has no cause of action for the breach of this contract, and that his complaint must be dismissed. Since plaintiff’s complaint in the principal action must be dismissed, it necessarily follows that the attachment proceedings must fall with it, and the judgment of the civil court dismissing the principal action and attachment proceedings must be affirmed on appeal to the circuit court, unless the record shows that the civil court committed reversible error on the trial. The circuit court granted a new trial upon the ground that the evidence offered in the principal action to show that the contract signed by defendant for the purchase of the Available motor truck is the contract of plaintiff was competent. As above indicated, this was error. The circuit court was of the opinion that the trial court erred in rejecting the plaintiff’s claim that the agreement between defendant and the Pauly Motor Truck Company for the sale of a motor truck to defendant, whereby the Pauly Motor Truck Company “agreed to assume the responsibility, should any trouble arise from the cancellation of Available truck order,” showed that the Pauly Motor Truck Company was guilty of wrongfully supporting and officiously intermeddling in this suit and that defendant’s counterclaim in this action should be dismissed and his answer stricken. There is nothing to show that the Pauly Company in any respect did anything to stir up strife and quarrels- between plaintiff and defendant or to assist ■and maliciously advise or assist defendant in prosecuting his defenses or his counterclaim in this litigation. We find no basis to sustain the cirguit court in its conclusion on this phase of the case. It is considered that the circuit court erred in granting a new trial of the action.

By the Court. — The order appealed from is reversed, and the cause remanded to the circuit court with directions to award judgment on the record affirming’ the judgment of the civil court.