O'Connor Oil Corp. v. Warber

• Decision Date: 10 May 1966
• Citation: 30 Wis.2d 638,141 N.W.2d 881
• Parties: O'CONNOR OIL CORPORATION, a Wis. corporation, Appellant, v. Elmer WARBER, Respondent.
• Court: Wisconsin Supreme Court

Page 881

141 N.W.2d 881

30 Wis.2d 638

O'CONNOR OIL CORPORATION, a Wis. corporation, Appellant, v. Elmer WARBER, Respondent.

Supreme Court of Wisconsin.

May 10, 1966.

McLeod, Donohue & Colwin, Fond du Lac, for appellant.

Worthing, Schneider & Mickiewicz, Fond du Lac, for respondent.

BEILFUSS, Justice.

The issues are: (1) Was parol evidence admissible to vary or explain the terms of the written note, and (2) are the findings of the trial court against the great weight and clear preponderance of the evidence.

The first issue must be resolved against the plaintiff-appellant, O'Connor.

The obligation of Warber was to pay the $1,200 'on demand when sales agreements are terminated.' The written terms of the note, without explanation, do not identify the agreement or agreements, whether they were written or oral, nor their conditions of breach or dates of termination.

The parol evidence rule prohibits the use of oral testimony of prior or contemporaneous negotiations to vary the terms of a written instrument complete upon its face. There are several exceptions to the parol evidence rule, one being that parol evidence can be used to explain an ambiguous term of the written instrument:

'A word or term in a contract to be ambiguous must have some stretch in it--some capacity to connote more than one meaning--before parol evidence is admissible.' Conrad Milwaukee Corp. v. Wasilewski (1966), Wis., 141 N.W.2d 240. ¹

If the sales agreements are to be considered contemporaneous documents, which is really the position taken by O'Connor, oral testimony was admissible and necessary to identify the documents and establish that these agreements are the ones referred to in the note. ²

We have concluded that the trial court properly received oral testimony to identify the agreements referred to in the note. If the two written sales agreements executed on the same day were in fact the sales agreements referred to in the note, the three written instruments constituted a single transaction and should be construed together. Assuming the written sales agreements were in fact the agreements referred to in the note, a second step parol evidence problem arises. The question then becomes,--Are the three written instruments construed together, complete and unambiguous upon their face? If they are, parol evidence should not be allowed to vary the terms. If the two written agreements were not the agreements referred to in the note or if they did not constitute the complete agreements (the note uses the plural word 'agreements') then oral testimony could be used to show the true intention of the parties. What the 'agreements' were became primarily a question of fact.

The parol evidence issue at this stage becomes entwined with the second issue raised on appeal, namely, are the findings of fact of the trial court against the great weight and clear preponderance of the evidence.

The trial court did not file written findings of fact and conclusions of law but did file its written memorandum opinion. The facts as stated in the memorandum opinion may be accorded the weight of findings of fact. Morn v. Schalk (1961), 14 Wis.2d 307, 313, 111 N.W.2d 80; Kietlinski v. Interstate Transport Lines (1958), 3 Wis.2d 451, 456, 88 N.W.2d 739; Estate of Wallace (1955), 270 Wis. 636, 639, 72 N.W.2d 383.

A portion of the trial court's memorandum opinion is as follows:

'It further appears that on the 26th day of June, 1959, the plaintiff's original $1200.00 paid for the equipment mentioned above was returned to the defendant in the form of a credit against charges shown on Invoice No. 06132, shown in the evidence as Defendant's Exhibit 3.

'Accordingly, it appears to this Court the original sale of the tanks and other equipment to the defendant by the plaintiff was set aside at the request of the plaintiff and the consent of the defendant. The defendant was then--under the documents executed, as mentioned above--obligated to use the plaintiff's products exclusively at the filling station. This he did. There is no question but what the defendant used the plaintiff's products pursuant to the Sales Agreements.

'At the close of the period covered by the Sales Agreements, the defendant left the premises and is now operating a filling station in the city of Fond du Lac.

'It is the contention of the plaintiff that after the station was closed, the defendant would be obligated to buy the equipment for the sum of $1200 mentioned in the note signed June 25, 1959, known as Plaintiff's Exhibit 1.

'This Court finds that the defendant did not terminate any Agreements. If there was any termination whatsoever, it was made by the plaintiff who drafted the Sales Agreements and provided for the approximate one year term during which the Agreements would be in effect. After the defendant lift the premises, of course, it would be ridiculous for him to dig up the tanks and remove the same.

'Accordingly, this Court finds that the defendant did carry out the terms of the Sales Agreement. The plaintiff desired to have its products sold by the defendant. The defendant went through with these agreements. He did not terminate or violate the terms of the Agreements to sell the plaintiff's merchandise. The note in evidence, known as Plaintiff's Exhibit 1, was executed to insure the defendant's carrying out the terms of the Sales Agreements. Since he carried out the terms of the Sales Agreements, he is not now obligated to pay for the tanks in question.'

We have examined the...