State ex rel. Cremer v. Steinborn, 92 Wis. 605

92 Wis. 605 | Wis. | 1896

Newman, J.

Doubtless, parol evidence was competent to show for which Oremer the ballots which failed to designate were intended to be cast. The evidence disclosed a latent ambiguity in them. But, clearly, there was no defect or ambiguity in the seven ballots which designated O. H. Oremer,. Jr., as the person voted for; and the parol evidence failed to disclose any defect or ambiguity. On the contrary, it did disclose the pertinence and force of the abbreviation “ Jr.” in pointing out which of the two of the same name was intended. Instead of disclosing an ambiguity in the ballots, it showed that they were industriously accurate and free from uncertainty.

Parol evidence to show the intention of the voter is receivable on the same general ground and for the same general purpose as parol evidence to explain written instruments is received. It is not receivable to explain what is already plain on the face of the instrument, and in no need of explanation; nor to contradict or vary the instrument. Attorney General ex rel. Carpenter v. Ely, 4 Wis. 420, 429; State ex rel. Spaulding v. Elwood, 12 Wis. 551, 558; State ex rel. Phelps v. Goldthwaite, 16 Wis. 146. To find that these' seven voters whose ballots read for O. H. Oremer, Jr., voted for G. 3. Oremer, Sr., is in direct contradiction of the definite and unambiguous evidence of the ballots themselves. These ballots cannot be counted for the relator, unless it can be found, on competent evidence, that it was his name which was on the ballots when they were cast. The intention of the voter cannot be proved to contradict the ballot, nor in opposition to the paper ballot which he has deposited in the ballot box. A ballot which is unambiguous cannot be varied by parol proof. Nor can it be proved that the voter intended to vote for one man when his ballot was cast for another. McCrary, Elections (2d ed.), § 401; Cooley, Const.. Lim. 611; People ex rel. Eastman v. Seaman, 5 Denio, 409; People ex rel. Smith v. Pease, 27 N. Y. 45, 84.

It is plain that there was no competent evidence to show that these contested ballots were cast for the relator. They were unambiguous, and it was not competent to vary their plain import by parol evidence; .and without them the relator was not elected.

At the close of the testimony the' appellant moved for the direction of a verdict in his favor. The court denied the motion. This was error.

By the OouH.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.