138 Wis. 404 | Wis. | 1909
The trial court reached the conclusion that the contract in question was not ambiguous so as to justify consideration of the surrounding circumstances needing to be disclosed by extrinsic evidence. The so-called findings of fact, as to the intention of the parties evinced by various clauses thereof, therefore are not such, but merely his conclusions of law in the judicial function of construing a writing from its own terms. We must therefore approach the question of construction as an original one, unaided and unembarrassed by the presumption in favor of a finding of fact.
The first question, very much debated, is whether the forest products other than cord wood, which for brevity we shall hereafter designate timber, were excepted from the conveyance to the plaintiff’s grantor, or whether there was merely a. reservation of a right to enter and retake Such timber, a distinction which is well recognized in the authorities. The expressions used, both in the deed and contract, are “excepted” and “reserved,” sometimes one and sometimes the other. Such interchangeable use of the two terms of itself creates a measure of ambiguity. Pritchard v. Lewis, 125 Wis. 604, 104 N. W. 989. But from consideration of the entire contract and the purposes of the parties as they are disclosed by the contract itself, we reach the conclusion that, so far as the-parties had intention on the particular subject, it was to the-effect that the title to the timber should remain in the original owner and not be conveyed either by the contract or the deed. We do not deem it necessary to enter into extended discussion of the reasons for such conclusion. It is supported by very much the same reasoning as contained in Pritchard v. Lewis, supra, and the authorities therein cited; also by Williams v. Jones, 131 Wis. 361, 111 N. W. 505. Starting, therefore, with that definition of the title, we have yet to consider the force and effect of the clause in the contract whereby the defendant’s predecessor agreed to remove such timber at the rate of 6,000 acres per year, or, in other words, the whole-of it within seven years. We deem that provision of the con
The trial below was characterized by the offer and adnds.sion de bene esse of a great deal of wholly improper and irrelevant evidence as to what the parties agreed on in parol and as to their understanding of the meaning of the terms used in the written agreement. Generally, verbal negotiations between parties who finally reduce their contract to writing are incompetent, except .so far as they are declaratory or eviden-tiary of facts and circumstances in the light of which the contract is made and in the light of which thereafter it may be construed. The subject has had careful exposition in several cases and proper distinctions noted. Some of those cases are: Brittingham & H. L. Co. v. Manson, 108 Wis. 221, 84 N. W. 183; Excelsior W. Co. v. Messinger, 116 Wis. 549, 93 N. W. 459; Corbett v. Joannes, 125 Wis. 370, 388, 104 N. W. 69; Loree v. Webster Mfg. Co. 134 Wis. 173, 114 N. W. 449; Hackley Nat. Bank v. Barry, 139 Wis. 96, 120 N. W. 215.
To avoid uncertainty, we think it best to express our opinion on the rights and duties of the respective parties as to taxes, although there seems to have been no disagreement thereon prior to the commencement of this action. The last-quoted clause of the land contract required the seller to pay all taxes on the land until it had removed the timber from any specific parcel thereof and given written notice of such removal, or until a tract or tracts shall have been sold or con-
By the Court. — Judgment reversed, and cause remanded for further proceedings in accord with this opinion.