30 Wis. 605 | Wis. | 1872
In respect to the first cause of action, we fully agree with the court below, that the contract contained in the telegraphic dispatches was a conditional' one — to do such ballasting from Brookfield to Milwaukee, at the price proposed, as the company might desire to have done, and that no particular amount of work was agreed upon. According to this view of the contract, the company could stop the work when it pleased. The plaintiff contends that those dispatches show that he was to do all the ballasting which might be necessary in order to render the defendant’s road serviceable between these two points. But we do not so understand them. These dispatches, though brief, as such correspondence usually is, are still free from ambiguity. The first one informs the plaintiff that the company wants ballasting done from Brookfield to Milwaukee, for which it will pay a given sum. The plaintiff accepted this proposition. No amount of ballasting is specified. But whatever the company wanted done the plaintiff agreed to do at forty-five cents per cubic yard. It appears to us that this is all there is of the contract as contained in these dispatches, and the plaintiff relies upon them to show what the contract was. The dispatches being free from ambiguity, and showing that no definite amount of work was to be done, but only so much as the company might desire, it is very plain that parol evidence was inadmissible for the purpose of proving that the plaintiff was to do all the ballasting necessary to render the road serviceable. The counsel for the plaintiff only contends that such evidence would be admissible if theRispatehes are indeterminate in themselves to show what amount of work was contemplated to be done. But to show by parol evidence, as it was proposed to do on the trial, that each party to the contract “contemplated the entirety of the work referred to,” would be to introduce terms into the agreement at variance with the written dispatches. Eor, as we have already remarked, these dispatches, though brief, are intelligible and show that the plaintiff was to do only so much ballasting as should be required on that piece of road
The writings in regard to the second contract are equally plain. That related to the grading of the depot grounds in the city of Milwaukee. The written proposition of the plaintiff was to do all the train work, required by the company for the grading, upon the terms proposed. There was no amount of grading specified, and none agreed upon. The fair implication is, that be was to do wbat the company wanted done. And the effect of the oral evidence was to add new conditions to the proposition wbicb was made by the plaintiff and accepted by the company. According to this proposition, no specific amount of grading was to be done, and parol evidence tending to show that any given amount was contemplated would be inadmissible, under the same rule as in the former case. The presumption is, that the writings in both instances express the intention of the parties, and parol proof was not admissible to introduce new conditions into the contract. These principles are elementary, and are not controverted on either side. Counsel differ as to the application of them to the writings before us. But, as the writings are plain and unequivocal, they must be assumed to express the real intention of the parties.
By the Court. — Tbe judgment of tbe circuit court is affirmed.