Will of Pullen

Eschweii-er, J. Tbe appellant, claimant herein, insists tbat upon tbe testimony be was entitled to have tbe receipt signed by him of March 5, 1913, tbe substance of which [258] has been recited above, reformed so that it would show what he claims was the real intent of the three parties therein concerned, viz. that the transfer of the sixty shares of the Mnncie National Training Corporation by Kelly to the deceased and by him to the claimant was a discharge and satisfaction of M. D. Kelly alone from all liability, and that it was then received by claimant, as between him and the deceased, as collateral security ■ only, with the understanding that if upon the sale of such stock there was obtained more than the sum of $3,000 (being the approximate one third of the total liability and the proportionate share of M. D. Kelly for the same), such surplus should be credited in favor of deceased upon the unpaid balance. That being done, that then, there having been nothing received on account of such stock, it having become worthless, his claim should be allowed for the full $6,000 and interest. Both claimant and Mr. Kelly testified with reference to the interview at Muncie at the time of the signing of the receipt, and the testimony of each was received over the objections interposed on behalf of the executor. The claimant was present and overheard the conversations carried on between Kelly and the deceased in which deceased was acting for his brother, the claimant. He was present and acquiesced in what was said and done at the time the form of the agreement was suggested to the attorney who thereafter dictated the same. His opportunity to object and his failure to do so while negotiations were going on was as much an approval of and participation in the same, under the circumstances shown in the evidence, as though he had expressly ratified all that his brother said and did, and then his receiving the fruits of such negotiations, all these made him a party, and not a witness merely, to what was going on, and therefore he was within the ban of sec. 4069, Stats., which provides in substance that no person shall be examined as a witness in respect to any transaction or communication by him personally with a deceased person through whom [259] title is derived or liability sustained. Holway v. Sanborn, 145 Wis. 151, 130 N. W. 95; Anderson v. Laugen, 122 Wis. 57, 99 N. W. 437; Morgan v. Henry, 115 Wis. 27, 90 N. W. 1012. In any event, it is very clear that upon tbe showing made by the claimant he could not have the. receipt signed by him modified as he prays. He was president of a bank at Evansville and had been in the banking business for a great many years. He read the receipt and then’signed it knowing that it did not express the agreement that had been made so far, as he was concerned. He signed it, as he says, “without any qualms at all,” and was willing to sign any paper, for the reason that he knew his brother always had and always would do the square thing with him. His own showing is a complete negation of one of the most essential elements that must always exist in order to entitle a party to a written instrument to the aid of the court in reforming it, viz. the exercise of a reasonable degree of care on his own part. Rayborn v. Galena I. W. Co. 159 Wis. 164, 149 N. W. 701; Steffen v. Supreme Assembly of Defenders, 130 Wis. 485, 110 N. W. 401; Deering v. Hoeft, 111 Wis. 339, 87 N. W. 298; Jackowski v. Ill. S. Co. 103 Wis. 448, 79 N. W. 757; Conant v. Estate of Kimball, 95 Wis. 550, 70 N. W. 74. Equity ought not to be asked to change such writings at the behest of one who, with full knowledge that it was not as he intended it should be, yet signed it with such utter and absolute indifference to his own interest.' To do so would be to set a high premium upon heedlessness. The rights, therefore, of the parties on this appeal are to be determined from the writings in evidence and without considering any testimony, either of claimant or of Kelly, tending to show that there was a different understanding in the minds of the parties and then expressed by them than is found embodied in the written receipt. Although there is evident confusion on the face of the re [260] ceipt of March 5, 1913, as to when the obligation to make good any loss, in addition to the agreement to repurchase the stock, first came into the transaction, yet the original guaranties and the extensions thereof were received in evidence without objection, are before the court, and may properly be considered. From all the documents it-appears beyond question that there was, first, a joint and several liability of Charles E. P. Pullen, M. D. Kelly, and P. I. Somers to repay upon demand $6,000, the purchase price of the Grold Crest mining stock; and secondly, that during the period in which these guaranties were extended there was an additional obligation assumed on the part of the three to make claimant whole from any loss that might be sustained by reason of his having made the original investment of $5,000 and $1,000 respectively. What might have been intended by the term “loss” at the time the parties originally assumed their obligation for such loss, whether it was interest or some other element, is entirely immaterial in view of the agreement consummated by the parties at Muncie on March 5, 1913, and evidenced by the receipt hereinbefore recited. This receipt shows on its face that the parties then considered their contract obligation arising out of their former writings to be such that there was a then total liability of approximately $9,000, including two elements, one for the repayment of the purchase price and the other for the loss sustained by claimant by reason of such original purchase and investment. Six thousand dollars is expressly designated in this receipt as part payment for such repurchase price and such loss and is also described as approximately two thirds of the obligation for such repayment and such loss. The parties, therefore, made a deliberate declaration by this receipt of their construction of their contract obligations, and such declaration is-and ought to be binding on them. Burton v. Douglass, 141 Wis. 110, 114, 123 N. W. 631; 9 Cyc. 588; 6 Ruling Case Law, 852. [261] The claimant, of course, is bound by this receipt, first, because he signed it, and secondly, because he produced it upon the trial and asked to have it reformed. It is binding upon the estate of the deceased because it is relied upon as a defense and the only defense to appellant’s claim. The proper construction to be given to this receipt, therefore, is that it was an acknowledgment by all concerned that there was an obligation of the deceased and Kelly to the claimant of $9,000 and that such obligation was then and thereby satisfied and discharged by the payment of what was treated as $6,000 cash, leaving unpaid and undischarged what would be a joint and several liability for a balance of $3,000, and against which balance no defense is shown on behalf of the estate. It is immaterial in this present determination of the rights and obligations of the deceased and the claimant in this action whether or not what was done at Muncie changed or affected the liability of Somers to the claimant under the original guaranties, or whether there can be any further claim against Kelly after the admission by the claimant that the transaction was a complete discharge of Kelly from all obligation. There is no foundation for a dispute in this case but that the $3,000 balance over the $6,000 expressed in the receipt is due and unpaid from the estate, unless the receipt itself is to be construed as a total discharge of the entire obligation. This, we have seen, it is not, and for that reason the judgment below must be reversed. By the Court. — -The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment in favor of claimant against the estate of the deceased for the sum of $3,000, together with interest thereon from March 5, 1913, together with his costs and disbursements.