Braun v. Wis. Rendering Co.

• Decision Date: 28 January 1896
• Citation: 66 N.W. 196,92 Wis. 245
• Parties: BRAUN v. WISCONSIN RENDERING CO.
• Court: Wisconsin Supreme Court

92 Wis. 245

66 N.W. 196

BRAUN

v.WISCONSIN RENDERING CO.

Supreme Court of Wisconsin.

Jan. 28, 1896.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Jacob M. Braun against the Wisconsin Rendering Company. Judgment for plaintiff. Defendant appeals. Affirmed.

On the 24th day of June, 1892, plaintiff and defendant entered into a written contract, whereby the parties agreed as follows: “The said first party [[[plaintiff], in consideration of the sum of $500 to him to be paid, does hereby lease unto said second party, for a term of three months, from June 24, 1892, ten cars and 2,500 feet of track. Should said second party, however, return said cars and track before the expiration of the said three months, they are to pay for the use thereof at the rate of $200 per month from the commencement thereof to the time of the return of said cars and track; said cars not to be returned before sixty days. Said second party also has the right, at any time before returning said cars and track, to buy the entire outfit, at a price not to exceed the sum of $900.” The property referred to was delivered to the defendant under this contract, and, after using the same for some length of time, it took the benefit of the option to purchase, by notifying plaintiff to that effect. Thereupon defendant claimed that all payments that had been made for rent, of which there were several, should be applied as part of the purchase money. Defendant claimed that such was the contract, and that it was through fraud or mistake that it was not so stated in the writing, and on this theory an action was brought in the circuit court for Milwaukee county to reform the contract. The result of such action was that judgment was rendered in favor of the defendant in that action (plaintiff here). The trial judge remarked at the time that the meaning of the contract would not be changed by granting the application to reform it according to the prayer of the complaint. This action was brought to recover for the use of the property for 24 days, and a recovery on the contract for purchase money, on the theory that defendant is not entitled to have the rent applied thereon. Defendant, by answer, set up the facts as claimed by it in respect to the making of the contract, claimed that the contract should be construed as allowing the rent to be applied on the purchase money, or that it should be reformed in order to so provide, also set up, by way of counterclaim, the result of the action brought to reform the contract. Judgment was rendered in favor of the plaintiff, from which this appeal was taken.Fiebing & Killilea and C. H. Van Alstine, for appellant.

Turner, Bloodgood & Kemper, for respondent.

MARSHALL, J. (after stating the facts).

There are several questions presented on this appeal, which will be considered in their order.

1. The first error assigned is that the court erred in the construction of the contract, in that it was not found that defendant was entitled to have the payments for rent applied on the purchase money. In construing a contract, it must be observed that while the office of judicial construction is to give effect to the intention of the parties, and that words and sentences should be so construed as to subserve such intention (Johnson v. Insurance Co., 39 Wis. 87;Weiseger v. Wheeler, 14 Wis. 101;Jacobs v. Spalding, 71 Wis. 177, 36 N. W. 608), this does not mean that violence may be done to the words the parties see fit to employ, but only that it is the duty of courts to look at the whole and every part of the contract, and to give that construction to it which will make it effectual to carry out the real intention of the parties so far as the words they see fit to employ will permit, without doing violence to the rules of language or the rules of law. Applying this to the contract before us, the conclusion is easily reached that the construction given to it by the trial court is correct. It is as clearly a lease of the property for a rental of $200 per month, with the privilege of purchasing the same at any time during the period named at $900, as English words can make it; and any other construction would do violence to the language the parties saw fit to use.

2. It is further claimed that, if the construction contended for by defendant is not correct, then the contract should be reformed. This court has repeatedly held that written contracts cannot be reformed except upon most positive and satisfactory evidence, showing fraud or mistake in committing the agreement to writing; that is, mistake of one party, and fraud of the other, or mutual mistake. Newton v. Holley, 6 Wis. 592;Lake v. Meacham, 13 Wis. 355;Harrison v. Bank, 17 Wis. 340;Fery v. Pfeiffer, 18 Wis. 510; Manufacturing Co. v. Langworthy, Id. 444; Ledyard v. Insurance Co., 24 Wis. 496. The proof must be plain, convincing, and beyond reasonable controversy that, by fraud or mistake, the true contract was not expressed in the writing (Blake Opera-House Co. v. Home Ins. Co., 73 Wis. 667, 41 N. W. 968); that is, as applied to this case, a mistake in omitting something which the parties intended to have inserted, or something which was in fact a part of the agreement, and which it was supposed was contained in the writing when it was signed and delivered,--not a mistake of judgment, in that one party relied upon the contemporary parol agreement of the other, instead of insisting upon its being reduced to writing. The latter appears to be the mistake in this case, if there was any mistake. Both parties knew that the words were omitted. Giving the most favorable effect to defendant's evidence, consent was given to the omission upon the promise made that such omission should make no difference. For this kind of mistake the law affords no remedy. It was a mere simultaneous parol agreement, which cannot be resorted to to vary or control the written contract. It follows that the court rightly refused to grant that part of the relief prayed for asking a reformation of the contract.

3. It is further claimed that the court erred in not finding...