Neises v. Hesselmann

191 N.W. 498, 179 Wis. 334, 1923 Wisc. LEXIS 12

• Court: Wisconsin Supreme Court
• Decided: January 9, 1923
• Status: Published

Opinion

Owen, J.

This action is based on the theory that the plaintiff and his wife executed the contract of October 2, 1919, for the purpose of clothing their agent with the legal title to the land to enable him to better dispose of the farm, and that they were induced so to do by reason of the promise made by the defendant that he would give them half of all he received for. the farm above $50,000 if plaintiff would turn the farm over to him. The sole question raised on this appeal is whether oral evidence introduced to show the oral agreement made by the defendant in this respect was competent.

Defendant claims that the contract of October 2, 1919, is valid and complete in itself, shows the agreement and. all of the agreement between him and plaintiff, and that parol evidence is inadmissible to alter or. vary the terms of that contract. We have been favored with a very able brief on the part of respondent’s counsel stressing the proposition that as the contract of October 2, 1919, was between principal and agent dealing with the subject of the agency, a burden rested upon the agent to prove the' uberrima fides of the transaction and to establish the perfect fairness of his dealing in the matter. We deem it unnecessary to consider whether the contract in question falls within that class of contracts made between principal and agent which the law scrutinizes with great care and will set aside unless it appears affirmatively that the agent exercised the utmost of good faith towards his principal.

The parol testimony offered to show the real purpose of ' executing the contract of October 2, 1919, is clearly admissible under Russell v. Andrae, 79 Wis. 108, 48 N. W. 117, and Riemer v. Rice, 88 Wis. 16, 59 N. W. 450. In tine former case it was said:

“Agents are frequently invested by their principals with the title to property, for convenience in making sales there-r of, and we are aware of no rule of law which excludes parol testimony to show the purpose of the transaction when proof of it becomes necessary.”

In Riemer v. Rice, 88 Wis. 16, 59 N. W. 450, this principle was applied to enable an agent to show as against his principal that an option given to him by his principal for the purchase of an hotel property for $40,000 was merely given for the purpose of enabling him to malee a sale thereof and that it was agreed that the agent should receive from the principal all that he got for the hotel property above $35,000. We see no distinction between that case and this. Certainly the law is as considerate of the rights of the principal as against the agent as it is of the rights of the agent as against the principal. We regard the rule as very' sound and wholesome, especially when applied to protect the principal from the misconduct of the agent. Parol testimony in this case leaves little room to doubt that the oral promise to pay one half of what was realized in excess of $50,000 was made, and that every requirement of justice demands that the judgment appealed from should not be disturbed.

By the Court. — Judgment affirmed.