Jost v. Wolf

Dodge, J. After careful examination of the evidence, consisting largely as it does of testimony of witnesses of greater — 40 — or less intelligence and fairness, and varying in command of the English language, as also in capacity of expression, we cannot say, with the requisite certainty, that the trial court’s findings as to the terms of the contract, or those against fraud and undue influence, are antagonized by that clear preponderance of evidence which alone can justify this court, on appeal, to set them aside. No comment we might make upon the conflicting evidence could add materially to the lucid and highly judicial analysis thereof contained in the opinion filed by the circuit judge. We must, therefore, proceed upon the established existence of the facts so found as a basis for consideration of other questions. t Appellant contends that the trial court erred in receiving and considering any parol evidence, because the land contract made on the day of the auction is the final and conclusive expression of the agreement between the parties. There is some evidence, perhaps, tending to show that the making of this writing was, to the understanding of both parties, such a matter of mere color or form, like the auction which preceded it, that insistence upon it as conclusive would work a fraud and thus bring the situation within one of the exceptions to the rule against contradicting or modifying a written instrument by parol. Juilliard v. Chaffee, 92 N. Y. 529; Baird v. Baird, 145 N. Y. 659, 663, 40 N. E. 222; Jamestown B. C. Asso. v. Allen, 172 N. Y. 291, 303, 64 N. E. 952. Such situation has not, however, been considered by the trial court, or intentionally declared in the findings, and we shall not find necessity, to declare'ourselves upon it for reasons to be stated. If we concede that the land contract must be taken as the complete and final agreement between plaintiff and Wolf at the time of its signature, it nevertheless constituted no -obstacle to the making of a new, different, or substitutionary agreement thereafter by mutual consent. Although plaintiff had agreed to sell, and defendant to buy, this land for $5,600, it was perfectly competent for either to release the other en — 41 — tirely or in part, or for both to agree that sale should be made, but at another or different consideration; also that the agreed price might be paid in any manner. Any such subsequent arrangement would-constitute a new contract, resting mainly in parol, and therefore provable by all ordinary means of evidence. If, as is found to be the fact, it consisted in re-adoption of a plan agreed upon or discussed before the written contract, the details of such plan could be proved to throw light upon the terms of the later oral contract, although inadmissible to prove that the written contract did not correctly express the agreement between the parties existing at the time of its execution. Lathrop v. Humble, 120 Wis. 331, 97 N. W. 905. Further, appellant urges that the land contract and the deed executed ten days later are but parts of one transaction, and, .read together, constitute complete written expression of its terms not subject to variation by parol. This is, however, merely begging the question of fact whether they were parts of one transaction, or whether another transaction took place after the written land contract and the deed was made in execution of such'later contract. This question of fact the trial court has resolved against appellant, and, as wte have already said, upon sufficient evidence. Some contention is made that the recital in the deed of a consideration of $5,500 is conclusive upon defendant and not open to dispute by parol. This contention, if sustained in this case, presents the anomaly that defendant, who did not sign the deed at all, is bound conclusively by a mere recital therein that the deed had been made for a consideration of $5,500, while the grantor, who formally executed the instrument over his seal, is not bound by the solemn avowal that the-, entire consideration had been paid. The position is supported by but two citations, viz., Powers v. Spaulding, 96 Wis. 487, 71 N. W. 891, and Desmond v. McNamara, 107 Wis. 126, 82 N. W. 701, neither of which cases dealt with attempted explanation of a mere recital of consideration, but — 42 — with express contractual stipulations on the part of grantees* embodied in deeds accepted by them. In the first case the attempt was to prove that an express written agreement to pay all cost of certain improvements was limited by parol to a fixed amount; in the second, to show a parol agreement that the grantor should pay a certain mortgage in contradiction of express stipulation in the deed that grantee should assume it. The inconclusiveness of a mere deed of conveyance to exclude-other evidence of the various terms of the contract in part execution of which it is made has been declared by this court so often as to hardly warrant further statement. Such deed,, on its face, shows that it is not an attempt to reduce to writing the agreement between the parties, but merely to execute-some part of a broader agreement. A simple conveyance is-unilateral, while a contract is, in its nature, at least bilateral. Perkins v. McAuliffe, 105 Wis. 582, 81 N. W. 645; Brader v. Brader, 110 Wis. 423, 85 N. W. 681. Of course deeds-vary in form, and some contain more or less expression of the-contractual undertakings of one or both parties. As to such subjects the written expression, like any other, is exclusive of oral proof. Powers v. Spaulding, supra; Desmond v. McNamara, supra; 2 Page, Cont. § 1205; 4 Wigmore, Ev. § 2433. In antithesis to such expressions of that which either party-promises are those mere declarations, recitals, or acknowledgments of existing facts, not contractual at all. These, while-pérhaps prima facie evidence of such facts, are not conclusive,, nor exclusive of other evidence. Indeed, the rule against extrinsic evidence to vary a written contract is not so much a. rule of evidence as one of substantive law, based on the idea that, generally, justice is promoted by holding parties bound' when they deliberately reduce their understanding to writing,, whatever the prior negotiation. Perhaps the best illustration of the distinction between mere recital or acknowledgment, of a fact and contractual stipulations is found in the cases as-to receipts, discriminating between those which merely ac~ — 43 — knowledge the fact of payment and those which involve agreements such as discharge or release. 2 Page, Cont. §§ 1201, 1202; Twohy M. Co. v. Estate of McDonald, 108 Wis. 21, 83 N. W. 1107; Seeger v. Manitowoc S. B. Works, 120 Wis. 11, 97 N. W. 485. In our ordinary deeds of conveyance the recital that there has been paid a consideration, and what that consideration was, is merely a statement of a fact theoretically necessary to exist in order that the conveyance might take effect, but which early became practically a mere immaterial fiction by reason of the rule that the grantor’s seal raised a conclusive presumption of a consideration sufficient to support the instrument. Hence one cannot deny existence of some consideration in order to defeat the conveyance. To that end, however, the correctness of the recital was and is wholly immaterial, and the authorities, practically without exception, recognize that it binds no one as to its correctness, but may be proved, aliunde, to have been greater or less or different in character, as property or services instead of money, and the like, so long as it is not inconsistent with the existence of some consideration to support the conveyance. Mowrey v. Vandling, 9 Mich. 39; Strohauer v. Voltz, 42 Mich. 444, 447, 4 N. W. 161; Dodder v. Snyder, 110 Mich. 69, 67 N. W. 1101; Harts v. Emery, 184 Ill. 560, 566, 56 N. E. 865; Barbee v. Barbee, 109 N. C. 299, 13 S. E. 792; Tolman v. Ward, 86 Me. 303, 29 Atl. 1081; M’Crea v. Purmort, 16 Wend. 460; Horner v. C., M. & St. P. R. Co. 38 Wis. 165, 176; Kickland v. Menasha W. W. Co. 68 Wis. 34, 38, 31 N. W. 471; Ohlert v. Alderson, 86 Wis. 433, 57 N. W. 88; Perkins v. McAuliffe, 105 Wis. 582, 81 N. W. 645; Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103; Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Butt v. Smith, 121 Wis. 566, 99 N. W. 328; Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054. In the deed before us the recital of $5,500 consideration is entirely typical. It presents nothing of promise or contract, merely a declaration of the fact. It therefore — 44 — presents no obstacle to proof that the real consideration was $600 in money, assumption of the existing mortgage, and agreement by the grantee to hold the property subject to an equity in John Suttner to acquire the title upon payment of the advances made by Wolf. This contract, which the 'court; in effect, found to have been made, left no debt from Wolf to Thomas Suttner upon which to base a vendor’s lien. The question of the legal validity of such an agreement with reference to real estate, as between Wolf and John Suttner, is of no materiality if Thomas chose to accept the promise, which, by the way, Wolf evinces every purpose to carry out to the satisfaction of John. Some discussion occurs in the briefs as to the validity of a suggested gift to John Buttner by his father of $1,660 of the promised consideration for the land. In the view taken by the trial cofirt as to the terms of the contract, and with which we concur, of course there never arose any debt from Wolf to Thomas Suttner, and therefore no gift of such debt. If ..gift at all was made, it was of the land, not of any portion of ¡a promised price first owing to Thomas and afterward transferred to John. Of course the execution and delivery of a deed, whether to the donee or to some one for him, was an entirely sufficient completed execution of the gift of the land. Albright v. Albright, 70 Wis. 528, 36 N. W. 254; Second Nat. Bank v. Merrill, 81 Wis. 142, 50 N. W. 503; Kittoe v. Willey, 121 Wis. 548, 99 N. W. 337. We are unable to discover- any error in the proceedings or decision of the trial court. By the Gourt. — Judgment affirmed.