82 Wis. 455 | Wis. | 1892
Exception is taken because the court admitted in evidence the written contract found in the foregoing statement. The grounds of the objection appear to be that the complaint is not based upon a written contract, nor any contract, but upon a balance due for goods sold and delivered. It does appear from the complaint, however, that there was a contract of bargain and sale for
The execution of this written contract is conceded by the defendants. There appears to be no evidence in the record that this written contract was ever modified, or that the same was procured by false representations. This being so, it continued to be binding upon the parties; and hence all prior negotiations and all preliminary agreements, in so far as they were covered by or in conflict with that contract, must be regarded as either merged in or excluded from the contract thus made. Herbst v. Lowe, 65 Wis. 321. It follows that the court properly struck out the testimony of R. G. Ramis to the effect that before the written contract was delivered the plaintiff agreed that if the defendants would leave it to his honor no lumber should be “ put on the cars except good, merchantable lumber ” with which they would be satisfied. That testimony, if admitted, would have been in direct conflict with the express terms of the written contract, which covered “ all birch lumber ” then in Judd’s yard, regardless of quality, “ except what mill culls ” the plaintiff saw fit to throw out. Since the defendants only sought to prove their counterclaim by such excluded testimony, it is manifest that the court was not called upon to submit the same to the jury. For the same reason we must hold that the court committed no error in .charging the jury to the effect that they had nothing to do with the quality of the lumber, but should simply determine the quantity shipped upon the cars at Barron.
It only remains to be considered whether there were any
We find no error in the record.
By the Court.— The judgment of the circuit court is affirmed.