Marsh v. Pugh

39 Wis. 507

• Court: Wisconsin Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

Lyon, J.

On the trial, the plaintiff gave in evidence an instrument in -writing, signed by the parties, purporting on its face to be specifications for the houses in question. This instrument does not specify the form or pitch of the roofs. In it, however, we find reference made to a plan of the houses, which is evidently separate and distinct from the specifications.

The plaintiff testified, in substance, that such plan was drawn on a board which had been lost, and that the drawing showed the roofs at a quarter pitch. But the court refused to allow the defendant to show that the agreement between the parties was that the houses should, be constructed like three specified cottages in the neighborhood, and that the roofs of those cottages were constructed with a pitch of one-third.

Manifestly, it was error to reject testimony to prove those propositions. It was competent for either party to show what was the plan referred to in the specifications, and the court very properly allowed the plaintiff to give testimony tending to show that such plan corresponded with a drawing of the houses, and, such drawing having been lost, to show by parol at what pitch the roofs were represented thereon. But it was equally competent for the defendant to introduce testimony tending to show that the plan agreed upon corresponded with that of the three cottages above mentioned, and what was the pitch of the roofs of those cottages. It cannot justly be said that such testimony will tend to change, or add to, the terms of a written contract. The form of the roof pertains to the plan of the buildings, and parol testimony concerning it does not affect the written specifications.

Because of the error above mentioned, the judgment must be reversed, and a new trial awarded.

By the Oowrt. — So ordered.