Loree v. Webster Manufacturing Co.

Dodge, T. Under the written contract of the parties it is obvious that the logs were to be paid for upon a scale thereof and not according to the true quantity otherwise ascertained, and that such scale, being properly made, was to be conclusive on the parties. The important question is how that scale was to be made, or, rather, since it was to be made, until plaintiff’s dissatisfaction, by the defendant and at its yards, what is the true construction of the provisions of the contract in case of dissatisfaction? The two theories are about as follows: The plaintiff contends that if, after the logs were delivered, either wholly or partially, he became dissatisfied with the scale, another scaler was to rescale the logs already scaled and to scale those not yet delivered, and his scale must supersede the former. The theory of the defendant is that the scale is a process which must go on car by car as the logs were delivered, and became complete and binding as each car was scaled, but that, at any time upon dissatisfaction, plaintiff had a right to have substituted a satisfactory person in place of the defendant’s employees to do that work as to subsequent deliveries. The contract may be conceded to be ambiguous on this subject, and therefore to entitle either party to offer such evidence as might aid in its construction. The court so viewed it and took evidence of facts, and circumstances surrounding the making of the contract, but also of negotiations and oral agreements between [177] the parties prior to tlie signing, and construed tlie contract in accordance with such oral agreements, or rather interpolated them into it. In this latter respect the court erred. When parties reduce their agreement upon both sides to' writing, that is the final and conclusive evidence of what they have agreed, and verbal proposals or stipulations, on which at any time in the negotiations their minds had apparently met, are deemed to have been abandoned or merged in the writing, and cannot be considered. Excelsior W. Co. v. Messinger, 116 Wis. 549, 93 N. W. 459; Corbett v. Joannes, 125 Wis. 370, 104 N. W. 69. This rule, however, does not exclude facts, circumstances, and knowledge of the parties existing at the time of entering into the agreement which may aid in giving meaning to the’words that are written therein. Excelsior W. Co. v. Messinger, supra; Corbett v. Joannes, supra. When the parties stipulated that, after expression of plaintiff’s dissatisfaction and agreement upon a new scaler, the scale should be made by him, they must have intended by the words “the scale” some operation which was certain to be possible at the time when, by the contract, it was to be performed. Now the time when plaintiff was dissatisfied might come at any period in the course of the contract work. It might come immediately after the first few shipments of logs, and it might be postponed till a large part or all of the logs had been delivered. If it appears that at any of those times it would, in the ordinary course of events as understood by both parties, be impossible to make a rescale of the logs previously delivered and passed into the yard of the defendant, we must conclude that the parties did not intend to provide for such an operation. Eor this purpose, then, we may examine the evidence to consider whether it throws any light upon the understanding of the parties. The defendant was a sawmill owner.. The yard into which these logs were to be delivered was appurtenant to its sawmill, and logs were drawn daily from it to be sawed. The plaintiff knew, as was the fact, that defendant [178] was to receive during the logging season into its yard, over tbe same railroad track, many other of its own logs from other sources; that as they were its own, as also were these, there was no object in its discriminating amongst them after they have been received, and it is in evidence, undisputed, that the defendant’s president at the time of making the contract explained to the plaintiff that it was intended and expected that the logs cut by him, as they were delivered in the yard, would be mixed with others. In the light of this knowledge, and the conduct of the plaintiff himself in failing in any way to mark these logs so that they could be identified after they were so mixed, it is obvious that any rescale after a considerable number of them had been delivered into the yard would be impossible, and such impossibility must have been in the contemplation of the parties. Erom this it results that the scale referred to by the contract to be made after the change of scalers could not have been understood or intended to apply to the logs delivered, but only to future deliveries. We therefore reach the same general conclusion as the circuit court, after eliminating improper evidence considered by him, and hold that the scale made as the logs were delivered was conclusive, and plaintiff is entitled to recover only upon that scale, except with reference to the one undelivered carload, as to which there is no dispute; and that it is wholly immaterial what was the actual quantity of logs delivered. This conclusion renders immaterial all the other questions discussed, and results in affirmance of the judgment. By the Court. — Judgment affirmed.