Kickland v. Menasha Wooden-Ware Co.

• Decision Date: 11 January 1887
• Parties: KICKLAND v. MENASHA WOODEN-WARE CO.
• Court: Wisconsin Supreme Court

68 Wis. 34

31 N.W. 471

KICKLAND

v.MENASHA WOODEN-WARE CO.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Portage county.

Action for the price of land sold. Judgment for plaintiff, Kickland. Defendant appeals.Jones & Sanborn, for Kickland, respondent.

Raymond & Haseltine, for Menasha Wooden-ware Co., appellant.

ORTON, J.

In 1878 one E. D. Smith was director and superintendent, and one Henry Hewitt, Jr., was director, of the defendant company. Hewitt, on behalf of the company, negotiated a bargain with the plaintiff for the purchase from him of a strip of land one rod wide, lying along the Wisconsin river, including lakes and bayous leading into the river, for rafting and booming purposes, on lots 1 and 2, in section 15, town 24, range 7 east, for the use of said company; and Smith, on behalf of said company, consummated said bargain, by paying the said plaintiff down $100, and by receiving a deed of conveyance to said company from said plaintiff of said premises. The said $100 was the nominal consideration in said deed, but it was a part of said bargain that, in addition to said $100 named in the deed, and as a part of the consideration of said purchase, whenever and at such time as the said company shall sell said premises, it shall pay to said plaintiff one-half of the excess it shall receive, as the consideration of such sale, over and above said $100, after deducting from the excess costs, expenses, and improvements, as the whole of said consideration. About the same time the company so purchased of the said plaintiff and so agreed, it purchased of one Jessie Martin and one John Riches a tract of land of about 10 acres adjoining the premises so purchased of the plaintiff, by and through the agency of said E. D. Smith, and on behalf of the company; and it was agreed that $300 should be the nominal consideration of the conveyance thereof, but that whenever the company should sell said land, it should pay to them one-half of the consideration of such sale over and above said $300, deducting costs, expenses, and improvements, which, together with the said $300 paid and named in said conveyance, should constitute the full consideration of said purchase; and the company received a deed of said Martin and Riches for that consideration, and on such condition, which, in effect, was the same agreement as to a future sale of the premises as the one made between the company and the plaintiff. The said Smith had said deeds duly acknowledged and recorded, and the company entered into possession of the premises. In 1882, the company, without making any improvements upon the premises purchased of the plaintiff, but having made some improvements on the premises purchased of said Martin and Riches, sold the whole of both of said premises to the Webster Manufacturing Company for $2,000, and the purchase money was paid into its treasury. This deed was executed by E. D. Smith as the then president, and by H. S. Smith as the secretary, of the company. The contingency upon which the balance of the purchase money has become due and payable having transpired, the plaintiff now demands judgment for one-half of the amount for which said premises so conveyed by him to the company was sold in excess of said $100, and deducting costs, expenses, and improvements, if any, to be ascertained by the proportionate value of the two premises or tracts of land so sold and conveyed to the company, which sum so demanded he alleges to be $300. These are substantially the facts proved.

In disposing of the questions raised on this appeal, it will be unnecessary to specially refer to the several errors complained of in admitting evidence, in instructing the jury, or in refusals to instruct as asked by the appellant; for the questions arise upon the mere statement of the facts, and are not difficultof solution. In the order in which these questions are discussed in the brief of the learned counsel of the appellant, they are--

First. That the terms of the deed as to the amount of the consideration cannot be changed by parol. There was formerly some conflict in the authorities upon this question, but since the case of Hannan v. Oxley, 23 Wis. 519, it has not been an open question in this state. It was there held “that parol proof may be given to show an additional consideration not inconsistent with the deed.” See authorities cited in the opinion. This case has been frequently followed by this court. Horner v. Railway Co., 38 Wis. 165;De Forest v. Holum, Id. 516.

Second. That this agreement to pay more than the consideration named in the deed is void by the statute of frauds. It is not perceived how this question can be raised in such a case. The deed is valid as a conveyance of the land, and the respondent does not seek to impeach it, or to change it in any manner as a valid conveyance. He only seeks to prove by parol what was the whole consideration of the sale, and that a considerable part thereof has not been paid. A promise to pay money, supported by a sufficient consideration, cannot be held void because it was in parol, most certainly; and this was all the respondent sought to show. There is consideration expressed in the deed sufficient to support it, and take it out of the statute. The additional consideration of the sale not paid, whether resting in parol or in writing, cannot affect the deed as a valid conveyance under the statute in any respect. It seems to be well settled that it is competent to prove by parol what the real consideration agreed to be paid was, and to show that the same, or some part of it, remains unpaid, though not thereby to impeach the title conveyed by the deed. 3 Washb. Real Prop. (3d Ed.) 327; Kimball v. Walker, 30 Ill. 510;Villers v. Beamont, 2 Dyer, 146; Phil. Ev. 482; Elden v. Seymour, 8 Conn. 304; cases cited in respondent's brief. But the cases above cited from our own court are sufficient. The learned counsel of the appellant admits, and cites cases to that effect, that parol evidence that the consideration named and receipted in the deed has not been paid, may be proper; citing Shephard v. Little, 14 Johns. 210. Although in that case it was only sought to prove that the consideration named in the deed had not been paid, yet Judge SPENCER, in his opinion, cites the case of a lease, where parol evidence was held admissible to prove an additional rent to be paid by the tenant beyond that expressed in the lease, and he says, near the close of the opinion, that “although you cannot by parol substantially vary or contradict a written contract, yet these principles are inapplicable to a case where the payment or amount of the consideration becomes a material inquiry.” This language is repeated by Judge WOODWORTH in a similar case of Bowen v. Bell, 20 Johns. 338. The case of McCrea v. Purmort, 16 Wend. 460, also cited by the learned counsel of the appellant, was one where the clause in the deed, acknowledging the receipt of a certain sum of money as the consideration of the conveyance, was held open to explanation, by proof in parol, that the consideration was to be paid in bar iron at a stipulated price. In Wilkinson v. Scott, 17 Mass. 249, it was held that the receipt or acknowledgment of the payment of the consideration in a deed was only prima facie or presumptive evidence of it, and was open to explanation by parol; and that it was not a case within the statute of frauds, because it was not a contract for the sale of land; that that contract was executed and finished by the deed; and that it was only a demand for money arising out of the contract. If proving that no part of the consideration had been paid, against the receipt in the deed, and acknowledgment by the deed that it had been paid, is proper, as the learned counsel admits, although so far in contradiction of the deed itself, how much more proper to prove an additional consideration not expressed or receipted in the deed. But enough on these two first points. See 2 Phil. Ev. 655, marginal, and cases cited in note 2.

Third. That the said E. D. Smith, who consummated this contract of pur chase, had no authority from the corporation to act as its agent in doing so, and especially had no authority to make the agreement to pay the plaintiff such additional consideration for the purchase. It is not strenuously insisted that he did not have authority to purchase the premises for the consideration named in the deed. It could not be reasonably so claimed, for the corporation defendant received all the fruits of the purchase, and sold and conveyed the premises at a large profit to the Webster Manufacturing Company, and received the consideration, and in the most positive manner ratified and assumed the acts of the pretended agent Smith in making such purchase, and paying the consideration named in the deed, and in the taking of the conveyance to the company. But it is claimed that, there being no proof that the company ever had any notice of the promise to pay this additional consideration,...