Custeau v. St. Louis Land Improvement Co.

Cassoday, J. If the parties ever made such a parol contract as is alleged in the complaint, it was, to say the least, a very remarkable one. Whether such a contract, even had one been made in writing, could have been enforced, is very questionable. On the trial, after the court had overruled a demurrer ore tenus and the plaintiff had been sworn and partially examined, he was, by leave of the cc urt, examined by the defendant’s counsel, and testified to the effect that the written contract (Exhibit A, dated May 21,1891) shown to the plaintiff, and afterwards put in evidence, was the contract received by the plaintiff from the defendant; that it was made and delivered after all the plaintiff’s conversation with the defendant, and after the plaintiff had paid to the defendant his money thereon; and that there was no other contract made after that between the plaintiff and defendant. Thereupon the defendant objected to any further testimony relative to a verbal contract made prior to the written one. The objection was overruled, and the plaintiff gave parol testimony tending to prove the allegations of his complaint. On cross-examination he testified to the effect that all of the conversation which he had related in court was had with the defendant’s superintendent before the written contract was signed and delivered; that [315] the superintendent made the contract with him, and that Exhibit A was the contract the defendant gave him. By the written contract the defendant, in effect, acknowledged that it had received $75 from the plaintiff, in consideration of which it had thereby given to him permission to enter upon the lot described and erect thereon a two-story frame store building to cost not less than $1,000, to be well built and painted and completed within sixty days from that date; and upon such completion the defendant therein agreed in effect to sell the lot to the plaintiff for $750, and apply the $75 as so much paid thereon, and thereupon to convey the premises to the plaintiff, taking back security for the deferred payments, which were to be made with interest as therein stated; and the building was to be insured by the plaintiff in the sum of $800 for the benefit and better security of the defendant. Manifestly the written agreement covered the entire contract of sale on the part of the defendant. There is no pretense of any fraud or misrepresentation on the part of the defendant of any existing fact. The rule is firmly settled in this state to thV effect “ that, in the absence of fraud or mistake, proof of antecedent or contemporaneous verbal agreements between contracting parties cannot be received to alter or control their written agreement.” Herbst v. Lowe, 65 Wis. 320; Andrews v. Youmans, 78 Wis. 58; Ball v. McGeoch, 81 Wis. 171. Because the court admitted evidence tending to prove such antecedent and contemporaneous verbal agreements the judgment of the superior court of Douglas county is reversed, and the cause is remanded for a new trial. By the Court.— Ordered accordingly.