121 Wis. 110 | Wis. | 1904
It is considered that tbe findings of tbe trial court, properly understood, are supported by tbe evidence. True, it does not appear that Langson bad, prior to tbe transaction between Host and Salentine, actually sold tbe certificate, but be bad parted with tbe membershij) which it represented to tbe extent of fully executing tbe power delegated to bim. He bad contracted it to Geddes as be was authorized to do, so that tbe latter was in a position to call upon Host with effect to perform by turning over tbe paper. That is, be bad, as counsel for respondents suggest, done just what was understood between Host and Salentine would, if it occurred, render tbe delivery of tbe certificate to tbe latter
The rule applicable to the facts as ábove stated is well established (Nutting v. Minnesota F. Ins. Co. 98 Wis. 26, 73 N. W. 432), as is also the rule that it is not to be applied except in cases falling clearly within its principles (Thorne v. Ætna Ins. Co. 102 Wis. 593, 596, 18 N. W. 920). The idea is this: A paper having the form of a contract may be delivered to take effect upon condition precedent. In that case there is no contract in fact till the contingency happens stipulated by the parties. As there is no contract in advance of such event, proof of the parol agreement in that regard is not an attempt to vary a written contract. That doctrine cannot be extended to include the delivery of a contract to take effect thereby, but to be terminated upon the happening of a condition subsequent. In such circumstances contractual relations commence by the delivery of the paper, so proof of a contemporaneous parol agreement that it shall cease upon the happening of some stipulated event would be plainly an attempt to vary a written contract by parol. An instructive discussion of this is found in Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, where as in this case there was an exchange of papers, one party delivering to the other a contract, in form, and receiving back certain promissory notes in consideration thereof, it being agreed at the time that whether the transaction should constitute a contract or not should depend upon* the legal opinion of one dr the other of two attorneys mentioned as to its validity. The opinion was
This court, in Thorne v. Ætna Ins. Co., supra, suggested pointedly tbe importance of not mistaking a writing delivered as a contract, to be extinguished upon tbe happening of a condition subsequent, which is without tbe rule here applied, for a writing delivered to' take effect upon condition precedent, which is within tbe rule, in tbe following language :
“Tbe rule should be cautiously applied and tbe facts clearly proven. . . . It is to- be observed tbat tbe rule is tbat it may be shown tbat tbe contract is not to become binding until tbe happening of some event or ascertainment of some fact, but not tbat tbe contract is to be presently binding and to become void on tbe happening of some event. If a contract is executed and delivered with intent to take effect, it is not to be thereafter avoided by virtue of a condition annexed to tbe paper by parol.”
Here tbe court, upon sufficient evidence, found tbat a paper delivered to Salentine was to take effect upon condition precedent, and if it should appear tbat it could not take effect, then it should be returned. It follows tbat Salentine never became tbe owner of tbe Host certificate. He there
The foregoing renders unnecessary the discussion of any other question presented for’ consideration in the briefs of counsel for appellant. The title to the certificate falling, the whole groundwork of his cause of action disappears.
By the Court. — The judgment is affirmed.