Burton v. Douglass

Barnes, J. There is sufficient evidence to support the finding of the trial court that the business carried on at Lake Geneva by the defendant Harold J. Douglass was his own, and that his codefendants were not interested therein. The trial court further found that the members of the firm of Douglass & Dunn did not breach their contract by engaging in business at Williams Bay and Zenda, as these places were not in the “vicinity” of Lake Geneva within the meaning of the term as used in the contract.- The word “vicinity” does not express any definite idea of distance. Used in some connections it may mean a very trilling space; used in others it may mean thousands of miles. In re Hancock St. Extension, 18 Pa. St. 26; State v. Meek, 26 Wash. 405, 67 Pac. 76; Schmidt v. Kansas City D. Co. 90 Mo. 284, 1 S. W. 865, 2 S. W. 417; Langley v. Barnstead, 63 N. H. 246. The parties to the contract no doiibt intended that the firm [114] of Douglass & Dunn should not materially depreciate the value of the good will of the business sold, or of the business itself, by entering into active competition on a substantially even basis with the plaintiffs for trade naturally tributary to their store at Lake Geneva. Where this line should he drawn depends on the facts established. Some mere trifling and inconsequential encroachment would not be a violation of the agreement, as that would be a difficult thing to avoid, even if defendants engaged in business at a point remote from Lake Geneva. Any substantial encroachment, however, would he. The contract being ambiguous in failing to prescribe a definite distance from Lake Geneva within which the firm of Douglass & Dunn should not engage in business, the construction placed thereon by the parties themselves becomes important. Practical- construction placed by the parties in interest upon doubtful or ambiguous terms in a contract will exercise a great and sometimes a controlling influence in determining the construction to be placed thereon by the courts. Janesville Cotton Mills v. Ford, 82 Wis. 416, 430, 52 N. W. 764; Walsh v. Myers, 92 Wis. 397, 401, 66 N. W. 250; Murray Hill L. Co. v. Milwaukee L., H. & T. Co. 110 Wis. 555, 566, 86 N. W. 199; Jones v. Thomas, 120 Wis. 274, 280, 97 N. W. 950; Excelsior W. Co. v. Messinger, 116 Wis. 549, 554, 93 N. W. 459. The firm of Douglass & Dunn placed a practical construction upon the contract by engaging in business at Williams Ray within a couple of months after their contract with plaintiffs was consummated, and at Zenda a short time thereafter. It advertised its business in the Lake Geneva papers-. Presumably the plaintiffs knew that the firm was selling flour and feed at the places named. If they did not, their business could not have been very seriously affected. Some eleven months after the business- at Williams Bay was started, plaint iffs evidently supposed that the firm of Douglass & Dunn was [115] about to engage in business at Lake Geneva. They employed attorneys to write that firm and threaten suit in the event of such intent being carried out. ISfo claim or assertion was made in that letter that any violation of the contract was claimed by reason of the business defendants were carrying on at Zenda and Williams Bay. On December 21, 1907, practically four years after the Williams Bay business was started, plaintiffs’ attorney wrote another letter to Horace G. Douglass, stating in effect that one or more of the members of the firm of Douglass & Dunn were proposing to violate their contract by engaging in business at Lake Geneva under cover «f the name of Harold J. Douglass. LTo.claim was made that the firm of Douglass & Dunn breached its contract by engaging in business at any other point. In each instance in which anything was done to indicate that Douglass & Dunn contemplated starting a business at Lake Geneva, the plaintiffs were prompt to assert their contract rights. The fact that they did not do so as to other points, if they conceived that their rights had been infringed upon, is very significant. The inference was strong that this action was brought because plaintiffs believed that Harold J. Douglass was a dummy who in reality represented one or both of the members of the firm of Douglass & Dunn, and that the complaint in reference to the business at Williams Bay and Zenda was an afterthought. The course of conduct pursued by the parties is consistent with the view that each construed the word “vicinity” as not precluding the establishment of stores at Williams Bay and Zenda, and there is nothing established by the proofs in the case to indicate that such a construction of the contract was not cor*rect. It is by no means dear that the evidence of the witness Dunn was competent as to the definition of the word “vicinity,” as used in the contract, given to the parties by the attorney who drafted such contract, and before it was signed. While evidence of surrounding circumstances and facts- that [116] will place the court as nearly as may be in tlie position in which tíie parties stood when they made their contract is receivable to aid in the construction of an ambiguous contract, many cases hold that the rule does not go to the extent of permitting a party to testify to antecedent or contemporaneous oral agreements or conversations. Johnson v. Pugh, 110 Wis. 167, 170, 171, 85 N. W. 641; Loree v. Webster Mfg. Co. 134 Wis. 173, 177, 114 N. W. 449; Hackley Nat. Bank v. Barry, 139 Wis. 96, 120 N. W. 275; Steele v. Schricker, 55 Wis. 134, 12 N. W. 396; Excelsior W. Co. v. Messinger, 116 Wis. 549, 553, 93 N. W. 459; Corbett v. Joannes, 125 Wis. 370, 388, 104 N. W. 69; Western L. & C. Co. v. Copper River L. Co. 138 Wis. 404, 415, 120 N. W. 277. On the contrary, there are a number of eases holding that such evidence is competent to explain an ambiguity in the writing. Ganson v. Madigan, 15 Wis. 144, unqualifiedly so holds, and there axe many cases where the rule laid down in this case- is cited with approval, of which Weber v. Illing, 66 Wis. 79, 83, 27 N. W. 834; Becker v. Holm, 89 Wis. 86, 91, 61 N. W. 307; and Rib River L. Co. v. Ogilvie, 113 Wis. 482, 487, 89 N. W. 483, are examples. Other cases involving facts similar to those in Ganson v. Madigan and the case at bar, and holding parol evidence admissible, are Nilson v. Morse, 52 Wis. 240, 9 N. W. 1; Wenger v. Marty, 135 Wis. 408, 411, 116 N. W. 7; and Perkins v. Owen, 123 Wis. 238, 101 N. W. 415. ETo case in this court- assumes in expi’ess terms to overrule Ganson v. Madigan, and in no case which we have been able to find involving a state of facts similar to those presented by the case at bar has parol evidence been held incompetent. The parties here substantially agreed on the definition of an ambiguous term which occurred in their contract as drafted. Parol evidence to establish that fact does not alter their written contract, and neither does it add to it. It simply goes to show what the parties meant when they used the term “vicinity” and what the contract now in fact means. [117] Regardless of this evidence, however, and of the finding made thereon by the trial eonr^ there is sufficient evidence in the case to sustain the finding of the court to the effect that neither the firm of Douglass & Dunn nor the individual members thereof engaged in business in the “vicinity” of Lake Geneva, particularly in view of the construction, placed upon the contract by all the parties thereto. By the Courts — Judgment .affirmed., ’