Kryl v. Mechalson
| Decision Date | 08 May 1951 |
| Citation | 47 N.W.2d 899,259 Wis. 204 |
| Parties | KRYL, v. MECHALSON et al. |
| Court | Wisconsin Supreme Court |
Action for damages for breach of a written contract dated March 1, 1948, by the terms of which plaintiff agreed to furnish his orchestra to perform at two concerts to be conducted at Marinette, Wisconsin, on October 7, 1948, for which services defendant agreed to pay plaintiff $1000. On July 12, 1948 defendant wrote plaintiff advising him that because the local musician's union had protested against presentation of the concerts at Marinette he must refuse to perform. Following receipt of the letter plaintiff went to Marinette and in a conversation with defendant was told that it would be impossible to go on against the protest of the union. After this meeting, on August 18, 1948, defendant wrote again advising that there had been no change in the plans, that it would be impossible to present the orchestra.
This action for damages for failure to perform was commenced on April 1, 1949. The jury returned a verdict for plaintiff.
At the trial the defendant offered to prove by parol that the contract was not to become binding until the following occurred: (1) that the local branch of the musician's union did not object to the presentation of the concerts; (2) that the union consent to such presentation and (3) unless and until one George Quaal recommended the plaintiff and his orchestra. The offer was rejected by the court.
Upon motions after verdict the trial judge considered that he had erred in rejecting the offer of proof and on July 20, 1950 ordered a new trial. Plaintiff appeals.
Tom Donoghue, Oconto, for appellant.
E. B. Martineau, Marinette, for respondents.
Plaintiff contends that a violation of the parol evidence rule would result from receipt of the offered proof. Defendant replies to the contention that it was offered, not to vary the terms of the writing, but to show that the paper was not to become effective as a contract until the consent of the union and the approval of Mr. Quaal had been obtained.
We agree with the trial court that the testimony should have been received. It was not offered to vary the terms of the contract. It was submitted as proof that the instrument should not take effect as a contract until the consent and approval had been obtained. It was not directed toward the contents of the agreement, but to establish a condition precedent, the happening of which was necessary before it became a binding contract. Paulson v. Boyd, 137 Wis. 241, 118 N.W. 841; Munz v. Leuchtenberger, 180 Wis. 56, 192 N.W. 475. 'Parol evidence is always admissible to show that a written contract not under seal was not to become effective until some future day or upon the happening of some contingency, provided the written conditions are not repugnant to the conditions sought to be established by parol.' Bultman v. Frankart, 194 Wis. 296, 215 N.W. 432, 433. '* * * the testimony rejected by the court was admissible for the purpose, not of varying the terms of a written instrument or of showing a condition subsequent, by virtue of which such instrument once effective should become ineffective and inoperative, but, rather, for the purpose of establishing that never at any time was there an effective written contract, that there never had been any delivery of the instrument as a contract, and that it never became operative.' Foot Schulze & Company v. Skeffington, 52 N.D. 307, 202 N.W. 642, 644.
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...are held not to prohibit the introduction of parol evidence establishing conditions precedent in Wisconsin. In Kryl v. Mechalson, 259 Wis. 204, 207, 47 N.W.2d 899, 900-01 (1951), a merger clause was held not to justify the rejection of parol evidence because, unlike the merger clause in Edw......
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