Gilbert v. Stockman

• Decision Date: 25 February 1890
• Citation: 76 Wis. 62,44 N.W. 845
• Parties: GILBERT v. STOCKMAN.
• Court: Wisconsin Supreme Court

76 Wis. 62

44 N.W. 845

GILBERT

v.STOCKMAN.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Appeal from circuit court, St. Croix county; E. B. BUNDY, Judge.Armstrong Taylor, for appellant.

R. H. Start, for respondent.

COLE, C. J.

The controversy in this case arises upon the defense or counter-claim set up in the answer. It appears that the defendant in January, 1881, purchased of the plaintiff a certain tract of land for an agreed price. The contract was a printed blank, filled up, and was in the ordinary form of a land contract, except, where the form provided for the giving of a warranty deed on payment of the consideration money, the word “warranty” was erased and the word “quitclaim” inserted. There was a clause in the contract by which the defendant agreed to pay all taxes, special or general, which had been assessed against the land since the 1st day of July, 1880, and also such as might be thereafter assessed thereon until the purchase money was fully paid. The defendant claimed that at the time the sale was made, and the contract entered into, the plaintiff informed him that there were some back taxes assessed upon the land prior to July, 1880, and that the plaintiff agreed, if the defendant would purchase the land for the sum of $225, that he would pay these back taxes; and it is also alleged in the answer that the defendant, relying upon this promise, and in consideration thereof, did purchase the land, and execute the contract. It appears that a tax-deed was issued for the delinquent taxes, and the defendant had to pay $56.42 to buy in this tax-title. He therefore seeks to recover this amount, as against the plaintiff's claim, by virtue of the parol agreement that the latter would pay the back taxes.

It is not claimed that there was any mistake or fraud in drafting the written contract, or that it does not contain all that the parties intended should be inserted therein. The defendant did not seek to have the contract reformed, so as to incorporate therein the alleged verbal agreement that the plaintiff would pay all back taxes assessed upon the land prior to July, 1880; but he sought to show, and was allowed to prove, the parol agreement, against the objection of the plaintiff, taken in various ways upon the record. And the real question in the case is, was it competent to make this proof under the circustances? It sems to us this question must be answered in the negative. The effect of the parol evidence was to add a material and important stipulation to the written contract, and was therefore inadmissible, upon well-settled rules of law. Where it appears that the whole agreement has been reduced to writing, proof of contemporaneous verbal agreements cannot be received to alter or change the written agreement. This rule has been often laid down by this court. The plaintiff's counsel has cited several of these decisions, and they are familiar to the profession. The rule is not applicable where the writing does not attempt to state the entire agreement in respect to the subject-matter; nor where the parol agreement relates to some collateral matter, or where there is a total or partial failure of consideration. The distinction is clearly pointed out in Frey v. Vanderhoof, 15 Wis. 439; Hahn v. Doolittle, 18 Wis. 206; Hubbard v. Marshall...