Agnew v. Baldwin

Tbe following opinion was filed June 5, 1908: WiNSlow, O. J. It seems plain that by stipulating to 'the entry of tbe judgment tbe defendant waived bis right of appeal therefrom. Tbe circuit judge evidently granted a new trial in the exercise of bis discretion because be was dissatisfied with tbe damages allowed by tbe jury on the counterclaim, but granted to tbe defendant the privilege of averting a new trial by reducing bis damages to a sum which tbe court deemed reasonable. Tbe defendant could take any one of three courses: be could appeal from tbe order if be deemed that tbe court’s discretion bad been abused, or be could submit to tbe new trial, or be could fill? bis stipulation and avoid another trial. He bad bis choice, and be chose to stipulate for tbe entry of tbe very judgment which was entered. In so doing be did not act under compulsion in any legal sense. A party cannot voluntarily stipulate that a certain judgment be entered and then appeal from it after its entry. He cannot be beard to complain of an act to which be deliberately consents. Consensus tollit errorem. Tbe plaintiff, however, has done nothing to forfeit bis right of appeal. He promptly moved for a new trial, and bis motion was granted subject to defendant’s right to stipulate to reduce bis damages. He did not even move for judgment on tbe stipulation, and has done nothing to waive bis claim to recover tbe entire amount of tbe balance due on tbe lumber contract without reduction. His appeal must therefore be considered. His first claim is that the evidence of the parol contract to fill tbe lots was inadmissible because thé entire contract was reduced to writing and is contained in tbe deed of tbe lots and tbe lumber contract, hence that it cannot be varied or enlarged by parol. The- difficulty with this contention is that neither tbe deed nor tbe contract pur [268] ports to contain tbe entire contract. The deed is simply a muniment of title and its recital of consideration is always subject to investigation. The lumber contract does not purport to state the nature of the consideration upon which it is founded. If the oral contract was as the defendant claims •and as the jury found, then it is clear that the whole contract was not reduced to writing, but only such parts of it as were necessary to convey the title of the land and define the obligation of the defendant to deliver lumber. Where parts only of an entire verbal contract are reduced to writing, parol evidence is admissible to show the remaining parts. Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054, and cases there cited. But it is further claimed that the entire verbal contract was void because not in writing. However, those parts which the statute requires to be in writing, namely, the conveyance of the land and the agreement to deliver the lumber, were subsequently reduced to writing. The promise to fill the lots was a contract for services and not a sale of property, and hence was not within the statute of frauds. Meincke v. Falk, 55 Wis. 427, 13 N. W. 545; Central L. & E. Co. v. Moore, 75 Wis. 170, 43 N. W. 1124. When the parties put those parts of the contract in writing which the statute requires to be written, manifestly the statute was satisfied and the entire contract became binding, unless indeed the agreement to fill the lots had been abrogated by the parties before the writings were made. The letter in evidence written on November 24th is claimed to amount to an abrogation of that part of the contract. There was sufficient evidence, however, from which the jury could find that the defendant at once objected to the proposal in the letter and insisted on the original contract, and, if they so found, then there was no abrogation by consent of the parties. The plaintiff is insisting upon the performance of the lumber contract, and, if the agreement to fill the lots was a part of the considera [269] tion for it, be can hardly claim that he has abrogated that part of it by his own. act, which was not assented to by the defendant. It is claimed that there were errors in the charge of the court. By his written exceptions the plaintiff first excepted “to those portions of the charge to the jury which are as follows.” Here follow more than two pages of printed matter contained in the charge, covering many separate propositions, most of which are absolutely unassailable. This is therefore an omnibus exception which presents no specific question for consideration. The plaintiff further excepted to those parts of the charge which assume that the parol agreement was valid and charge that its terms could not be modified except by assent of both parties. As previously indicated in this opinion, there was no error in the charge in these respects in a case like the present where the plaintiff is endeavoring to enforce one of the parts of the original agreement. A third exception is based on the failure of the court to charge that the parol agreement was void because not in writing, and his further failure to instruct that the letter of November 24th, followed by the written agreement to deliver lumber, constituted a waiver on the part of the defendant of any claim of liability for refusal to fill the lots. These propositions also are disposed of in the previous discussion in this opinion. There are no other questions which require attention. By the Gourt. — The appeal of the defendant is dismissed, and upon the plaintiff’s appeal the judgment is affirmed. A motion by the plaintiff for a rehearing was denied September 29, 1908.