Borchert v. Skidmore Land Co.

Wisconsin Supreme Court

Borchert v. Skidmore Land Co.

171 N.W. 70, 168 Wis. 523, 1919 Wisc. LEXIS 101

CourtWisconsin Supreme Court

DecidedMarch 4, 1919

StatusPublished

Cited by9 cases

This text of 171 N.W. 70 (Borchert v. Skidmore Land Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Borchert v. Skidmore Land Co., 171 N.W. 70, 168 Wis. 523, 1919 Wisc. LEXIS 101 (Wis. 1919).

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Opinions

Vinje, J.

The written contract for the exchange of properties was unambiguous and complete in itself. It stated what each party agreed to do in order to secure the conveyance contracted for from the other. The Skidmore Land Company agreed to convey to Coons certain real estate in consideration of his deeding to it, subject to the mortgages in suit and others, the land it was to receive. The terms, therefore, upon which it agreed to part with its land and the terms upon which it would receive the Coons land were contractual terms. They constituted the very essence of the contract. It is a familiar rule that the material contractual terms of a written contract, when complete and unambiguous, cannot be contradicted or varied by parol testimony of prior or contemporaneous conversations or agreements. 4 Wigmore, Ev. § 2425; 10 Ruling Case Law, 1021; 3 Jones, Ev. (3 Horwitz, Comm.) § 434. This rule applies as well to the consideration expressed in a writing when that is contractual as to other terms theréin. 10 Ruling Case Law, 1044. In land contracts such as the one in question the consideration is a contractual part of the writing. Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909.

In deeds and other unilateral contracts where some expressed consideration is essential to give validity to the instrument or to prevent a resulting trust in favor of the grantor and because the instrument does not purport to express the complete contract between parties, a different rule obtains and parol testimony is admissible to show the con[526]*526sideration actually agreed upon. Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Jost v. Wolf, 130 Wis. 37 (110 N. W. 232) and cases cited on p. 43; Kipp v. Laun, 146 Wis. 591, 600, 131 N. W. 418. But where the written contract is complete and there is nothing in it to suggest that it does not embody the whole agreement between the parties, parol testimony is inadmissible to- vary or contradict it. Cliver v. Heil, 95 Wis. 364, 70 N. W. 346.

That an agreement to- assume and pay a mortgage upon conveyed property is essentially different from an agreement to take title thereto subject to- the mortgage is too obvious to need discussion or explanation. Hence an agreement to take title to land subject to a mortgage is varied by showing that the mortgage debt was assumed by the grantee, because it adds a personal liability not present in the original undertaking.

A suggestion is made that the provision in the written contract as to consideration merged in the deed and therefore, since oral testimony is admissible to contradict the consideration expressed in a deed, the testimony offered was erroneously excluded. That the provision as to consideration in the contract did not merge in the deed is ruled in Butt v. Smith, 121 Wis. 566, 99 N. W. 328. In that case it was held that the terms of an oral agreement as to consideration did not merge in a deed subsequently executed; that they could be shown by parol testimony, and if they were contradictory to- the deed they controlled - as to the amount of consideration to be paid for the conveyance. In the present case the amount of consideration was expressed in a written contract and as there expressed was identical with the recital in the deed. It has also been held that an original contract for the exchange of real estate in which each party assumed a mortgage on the property conveyed to- him did not merge in deeds subsequently executed which contained no provision for the assumption of the mortgages. Stockton v. Gould, 149 Pa. St. 68, 24 Atl. 160. This is on the theory [527]*527that the deed is but a part performance of the contract and that the contractual terms of the latter, conferring valuable rights and forming the consideration upon which it was entered into, control, and do not merge in the recitals of the deed. To hold that the terms of an express written contract as to consideration in pursuance of which a deed is given merge in the .deed and become subject to the construction given to terms of mere recitals therein would be to destroy the power of parties to make binding written contracts, as to consideration. For example, A. agrees in writing to pay a certain consideration for a deed to a tract of land “subject to a mortgage” and takes a deed subject to a mortgage. Under his contract -and deed he has bought the equity of redemption only. He has incurred no personal liability. But if the consideration expressed in the contract merges in the deed, then he obtains no protection from it, for the recital in the deed may be contradicted by parol testimony and it may be shown that he assumed and agreed to pay the mortgage. This is not the law. A material provision in a written contract is not merged in a later contract, which, as to such provision, does not purport to speak contractually, but merely by way of recital in order that its validity may not be questioned because of the absence thereof. Naturally a different rule usually applies to covenants of title. Since it is the express purpose of a deed to pass title and to define the character thereof, its provisions relative thereto, in the absence of fraud or mistake, control when they purport to cover the field of the previous contract.

The finding of the trial court that the agent, Hawkins, sent by the Land, Company to have the papers executed, had no authority to bind the company by any agreement different from that expressed in the written contract and the written instructions given him, cannot be successfully assailed as against the weight of evidence. It appears that Coons knew that Hawkins had express written instructions to which he frequently referred during their transactions [528]*528to see that he did not overstep his authority. These instructions were such as would be given any clerk sent to secure the transfer of papers in a land deal whose terms had already been agreed upon. They authorized mere ministerial acts. They gave no power to vary the terms of the written contract. So, too, the claim of ratification by the Land Company of Hawkins’s acts fails, as inferentially found by the trial court.

By the Court. — Judgment affirmed.

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Vinje, J.

The written contract for the exchange of properties was unambiguous and complete in itself. It stated what each party agreed to do in order to secure the conveyance contracted for from the other. The Skidmore Land Company agreed to convey to Coons certain real estate in consideration of his deeding to it, subject to the mortgages in suit and others, the land it was to receive. The terms, therefore, upon which it agreed to part with its land and the terms upon which it would receive the Coons land were contractual terms. They constituted the very essence of the contract. It is a familiar rule that the material contractual terms of a written contract, when complete and unambiguous, cannot be contradicted or varied by parol testimony of prior or contemporaneous conversations or agreements. 4 Wigmore, Ev. § 2425; 10 Ruling Case Law, 1021; 3 Jones, Ev. (3 Horwitz, Comm.) § 434. This rule applies as well to the consideration expressed in a writing when that is contractual as to other terms theréin. 10 Ruling Case Law, 1044. In land contracts such as the one in question the consideration is a contractual part of the writing. Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909.

In deeds and other unilateral contracts where some expressed consideration is essential to give validity to the instrument or to prevent a resulting trust in favor of the grantor and because the instrument does not purport to express the complete contract between parties, a different rule obtains and parol testimony is admissible to show the con[526]*526sideration actually agreed upon. Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Jost v. Wolf, 130 Wis. 37 (110 N. W. 232) and cases cited on p. 43; Kipp v. Laun, 146 Wis. 591, 600, 131 N. W. 418. But where the written contract is complete and there is nothing in it to suggest that it does not embody the whole agreement between the parties, parol testimony is inadmissible to- vary or contradict it. Cliver v. Heil, 95 Wis. 364, 70 N. W. 346.

That an agreement to- assume and pay a mortgage upon conveyed property is essentially different from an agreement to take title thereto subject to- the mortgage is too obvious to need discussion or explanation. Hence an agreement to take title to land subject to a mortgage is varied by showing that the mortgage debt was assumed by the grantee, because it adds a personal liability not present in the original undertaking.

A suggestion is made that the provision in the written contract as to consideration merged in the deed and therefore, since oral testimony is admissible to contradict the consideration expressed in a deed, the testimony offered was erroneously excluded. That the provision as to consideration in the contract did not merge in the deed is ruled in Butt v. Smith, 121 Wis. 566, 99 N. W. 328. In that case it was held that the terms of an oral agreement as to consideration did not merge in a deed subsequently executed; that they could be shown by parol testimony, and if they were contradictory to- the deed they controlled - as to the amount of consideration to be paid for the conveyance. In the present case the amount of consideration was expressed in a written contract and as there expressed was identical with the recital in the deed. It has also been held that an original contract for the exchange of real estate in which each party assumed a mortgage on the property conveyed to- him did not merge in deeds subsequently executed which contained no provision for the assumption of the mortgages. Stockton v. Gould, 149 Pa. St. 68, 24 Atl. 160. This is on the theory [527]*527that the deed is but a part performance of the contract and that the contractual terms of the latter, conferring valuable rights and forming the consideration upon which it was entered into, control, and do not merge in the recitals of the deed. To hold that the terms of an express written contract as to consideration in pursuance of which a deed is given merge in the .deed and become subject to the construction given to terms of mere recitals therein would be to destroy the power of parties to make binding written contracts, as to consideration. For example, A. agrees in writing to pay a certain consideration for a deed to a tract of land “subject to a mortgage” and takes a deed subject to a mortgage. Under his contract -and deed he has bought the equity of redemption only. He has incurred no personal liability. But if the consideration expressed in the contract merges in the deed, then he obtains no protection from it, for the recital in the deed may be contradicted by parol testimony and it may be shown that he assumed and agreed to pay the mortgage. This is not the law. A material provision in a written contract is not merged in a later contract, which, as to such provision, does not purport to speak contractually, but merely by way of recital in order that its validity may not be questioned because of the absence thereof. Naturally a different rule usually applies to covenants of title. Since it is the express purpose of a deed to pass title and to define the character thereof, its provisions relative thereto, in the absence of fraud or mistake, control when they purport to cover the field of the previous contract.

The finding of the trial court that the agent, Hawkins, sent by the Land, Company to have the papers executed, had no authority to bind the company by any agreement different from that expressed in the written contract and the written instructions given him, cannot be successfully assailed as against the weight of evidence. It appears that Coons knew that Hawkins had express written instructions to which he frequently referred during their transactions [528]*528to see that he did not overstep his authority. These instructions were such as would be given any clerk sent to secure the transfer of papers in a land deal whose terms had already been agreed upon. They authorized mere ministerial acts. They gave no power to vary the terms of the written contract. So, too, the claim of ratification by the Land Company of Hawkins’s acts fails, as inferentially found by the trial court.

By the Court. — Judgment affirmed.

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171 N.W. 70, 168 Wis. 523, 1919 Wisc. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borchert-v-skidmore-land-co-wis-1919.

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