Hannon v. Kelly

• Decision Date: 17 March 1914
• Parties: HANNON v. KELLY ET AL.
• Court: Wisconsin Supreme Court

156 Wis. 509

146 N.W. 512

HANNON

v.KELLY ET AL.

Supreme Court of Wisconsin.

March 17, 1914.

Appeal from a Judgment of the Circuit Court for Oconto County; William B. Quinlan, Circuit Judge. Affirmed.

Barnes and Timlin, JJ., dissenting in part.

Action to recover possession of personal property.

One Matilda Hannon owned and possessed a hotel property in the city of Oconto having the usual accessories to accommodate and attract customers, such as a saloon and, in the street in front just outside the curb line, a pair of platform hay scales. The scales were set in the ordinary way and had the appearance of being permanently affixed to the realty as a part of the hotel property. It was a valuable part thereof both as an inducement to people to patronize the hotel and as a direct source of profit. The situation was so represented to plaintiff during negotiations between her and the owner respecting a purchase thereof by the former with the furniture and other personalty in the building, for use and in use by the proprietor in the hotel business, which was somewhat intermixed with other personalty. All except the latter was the subject of the negotiations. The result was that plaintiff bargained, verbally, to pay for the entirety, $4,000, possession to be delivered to her July 1, 1912. Pursuant to the verbal agreement the property was, by warranty deed, conveyed to plaintiff April 5, 1912, the deed specifying the date for delivery of possession and, in order to enable the purchaser to identify and separate her personal property in the house from that not owned by the seller, an old list which the latter had was attached to the deed and referred to in these words, following the description of the hotel premises: “Known as the Richards House, together with all the personal property contained in seventeen rooms, kitchen, dining room and pantry in said house as per inventory hereto attached.” Thereafter and while the vendor was yet in possession she verbally sold the scales to a third party. Without disturbing them the purchaser resold. Plaintiff thereafter took possession. The scales were in place then as in the beginning and were being used, as commonly, as part of the hotel property. Plaintiff continued such use for some two weeks without disturbance or notice than an attempt had been made to deprive her of the scales. In the meantime the second purchaser verbally resold the scales to the Oconto Water Supply Company. Thereafter its employés, the defendants, against plaintiff's protest, detached the scales from the land to which the same were fixed. She then commenced this action to recover possession.

The evidence established, or tended to establish, all matters above stated and this further, though under objection on behalf of defendant that the recitals in the deed were conclusive as to the entire subject of the sale to plaintiff; during the negotiations leading up to the sale and which resulted in the verbal contract, plaintiff inquired about the scales and Mrs. Noel said they went with the property. The trade was verbally closed with that understanding. Later the deed was delivered and consideration paid, plaintiff relying upon Mrs. Noel's representation as to the status of the scales.

During the trial it was taken for granted with the court's approval that the scales, before removal by defendants, were personal property.

The jury found, specially, that, at the time of the verbal contract which resulted in the conveyance by deed being made, it was agreed and understood that the title to the scales would pass as part of the consideration for the $4,000, and found in plaintiff's favor as to all other matters requisite to entitle her to judgment, which was accordingly entered.Green, Fairchild, North, Parker & McGillan, of Green Bay, for appellants.

Francis X. Morrow and Classon & O'Kelliher, all of Oconto, for respondent.

MARSHALL, J.

[1] Was error committed by permitting oral testimony as to what was said when the verbal contract was made respecting the transfer of the hotel property to respondent respecting whether the scales would pass to the latter as part of the subject of the sale?

It is contended that the rulings in question violated the principle that all negotiations leading up to and resulting in a written contract are, subject to some exceptions, conclusively presumed to be merged therein and, therefor, oral testimony, varying or contradicting the writing, is not permissible.

The principle relied on by appellant is familiar. The object thereof is prevention of fraud. Where the object would clearly not be promoted by application of the principle, arbitrarily, would promote instead of protect against a fraudulent purpose the tendency has been to create an exception. In this way, by a long course of judicial administrative experience, several exceptions have been wrought out and restrictive boundaries placed about the rule, illustrating the maxim that, in general, a good rule admits of good exceptions and, necessarily, limitations. In my own judgment the rule under discussion, beneficent as I concede it to be, has quite as much dignity in its exceptions and limitations as in its entirety. The former vindicates that crowning conception of the law which the broad minded courts constantly struggle to vitalize. Ubi jus, ibi remedium.

One of the limitations mentioned and so often referred to as an exception as to come to be so regarded, is this: Where the writing is but a part execution of an entire verbal contract; the parties having elected to permit the rest to remain in parol, the question of whether the latter can be established aliunde the writing is outside the general rule as to varying, explaining or contradicting a written contract by oral evidence, and so the prohibition does not reach it. That, however, is limited by the proviso that the part of the entirety not embodied in the writing must not contradict it, nor the writing clearly indicate that it was intended to embody the entire verbal contract. The court below ruled that the limitation of the principal rule, notwithstanding such proviso, applied to the case. It is conceded by counsel for respondent that such ruling would be sound except for the reference in the deed to personal property, but that such reference clearly indicates an intention to embody in the writing the entire contract as to personalty as well as realty.

Whether the circumstance mentioned indicates as claimed is matter of evidentiary inference. It by no means follows, as matter of course, that because the list of furniture and hotel instrumentalities in particular rooms were mentioned in the deed that there was a specific intent to name therein everything of a personal property nature or which might be regarded by either of the parties as personalty but formed a part of the subject of sale. There were many circumstances bearing on the subject, particularly the one that there was personalty in the house other than that owned by defendants and that it was necessary to specify the latter in order that it might be identified from the former. The decision of the trial court on this cannot be disturbed.

Did the evidence as to the scales forming part of the entirety contradict the deed? That may be viewed in two aspects, one assuming that the scales were personal and the other that they formed a part of the realty. The former, as indicated in the statement, was the viewpoint of the trial court and counsel on both sides below and here.

The condition of a part of an entire verbal contract left in parol while the rest in part execution of the entirety...