Caldwell v. Perkins

Phoxey, J. The sale and conveyance by the defendant to the plaintiff of the Dakota lands, the sale and conveyance' of the two stores and lots whereon they were situate, at Belleville and Mt. Vernon, by the plaintiff to the defendant, and the sale and transfer to the latter by the plaintiff of the “ entire stock of general merchandise contained in the-store buildings,” all took place under and in pursuance of the express stipulations of the written agreement between the parties of December 16, 1893. The deeds of conveyance and bill of sale were executed in part performance of this written agreement, the substance of which was the exchange of the properties of the parties for specific prices named in part and to be ascertained in part thereafter, and the payment by the plaintiff to the defendant of the difference between them. This contract necessarily included the fixtures of the stores, but it did not mention or include the store furniture, etc., in dispute, and there is nothing in [93] ‘the subsequent modifications of the contract relating thereto. 'The contention on the part of the defendant was that there was a verbal agreement, at or before the time of the making of the written contract, by which the property in dispute was to go to the plaintiff for a part of the price paid for the stores, although it was not a part of the stocks of merchandise and was not mentioned in the bill of sale or in ■fhe deed to the defendant. This written agreement must be taken to contain the real contract, until the contrary is •clearly and satisfactorily established, and it cannot be varied •or altered except upon proof of fraud or mistake, and there is no claim of either. It is elementary that all previous negotiations are merged in a written contract, so that, after its execution, parol proof thereof cannot be received. The parol evidence set out in the foregoing statement was received, and its reception was sought to be justified, on the ground that the transaction covered the property in dispute, •and that the written conveyance omits it entirely. It was said that it was competent to prove that this property was .sold and transferred for the same consideration expressed in the deed, and that the cases of Hahn v. Doolittle, 18 Wis. 196; Red Wing Mfg. Go. v. Moe, 62 Wis. 240; Green v. Batson, 11 Wis. 54; and Bretto v. Levine, 50 Minn. 168,— justify the reception of this evidence. These cases are to the effect that the rule that where parties reduce their contract to writing the writing is presumed to contain the whole contract and it cannot be shown by parol that other things were agreed upon at the same time, is not applicable to written instruments (such as deeds of land, assignments of choses in action, bills of sale, indorsements of notes), which, from their nature, are adopted merely to transfer title in execution of an agreement which they do not profess to show, nor ■does it preclude proof by parol of representations or of an ¡anterior warranty, by way of inducement, in respect to the sale of chattel property, or of the value of land conveyed. [94] It must be conceded that such evidence does not change the' instrument of transfer of title in the least, but this case is-clearly distinguishable. The agreement before us is complete in and of itself, containing the stipulations' and agreements forming the consideration for the undertaking of each of the parties. It was executory, and was not an instrument to pass the title to any of the property, and for this reason is not, we think, subject to the rule invoked. When it is-found that the property is not described in the deed or bill of sale, and the written agreement is consulted to ascertain the contract of the parties, it shows clearly what was agreed on. It contains no clause from which it may be inferred that the parties did not intend to incorporate in it the contract just as it was made, and the whole of it. It purports to state the whole contract, and the property in dispute is not within it. In the absence of fraud or mistake, it must be held to contain the whole contract. Hubbard v. Marshall, 50 Wis. 322, 326-328; Gillmann v. Henry, 53 Wis. 465; Braun v. Wis. Rendering Co. 92 Wis. 245. Where a verbal contract is entire, and a part only, in part performance, is reduced to writing, parol proof of the entire contract is competent. Hope v. Balen, 58 N. Y. 382; Chapin v. Dobson, 78 N. Y. 74. And such was the case of Bretto v. Levine, 50 Minn. 168; Hahn v. Doolittle. 18 Wis. 196; and other cases relied on by the defendant. But here, the entire contract being in writing, parol evidence was not admissible to show a prior or contemporaneous agreement by parol, to-add a new obligation or provision to it, by which, for the same consideration expressed in it, the contract was to be made more burdensome to the plaintiff or more beneficial to the defendant. The effect of the evidence, under the charge of the court, was to add a provision to the original contract, including, as a part of the property agreed to be sold to the defendant, the furniture and tools in dispute, in addition to the property described in it. As was said in [95] Eighmie v. Taylor, 98 N. Y. 294: “If we may go outside of the instrument to prove that there was a stipulation not contained in it, and that only a part of the contract was put in writing, and then, because of that fact, enforce the oral stipulation, there will be'little of value left in the rule itself. The writings which are protected from the effect or contemporaneous oral stipulations are those containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. If, upon inspection and study of the writing, read, as it may be, in the light of surrounding circumstances in order to its proper understanding and interpretation, it appears .to contain the engagements of the parties and to define the object and measure the extent of such engagements, it constitutes the contract between them and is presumed to contain the-whole of that contract.” These views of the case are decisive. Nothing can be added to or taken from the contract, except for fraud or mistake; and, as already stated, there was no claim of either. Eor these reasons we must hold that the court erred in admitting the parol evidence stated and in instructing the jury, in substance, that they might give effect to it in arriving at a verdict. By the Ooivrt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.