Schoblasky v. Rayworth

120 N.W. 822, 139 Wis. 115, 1909 Wisc. LEXIS 133

• Court: Wisconsin Supreme Court
• Decided: April 20, 1909
• Status: Published

Opinion

Timlin, J.

The court directed a verdict for the plaintiff, holding that the parol evidence was inadmissible to contradict the written bill of sale. It has been ruled that a written agreement may be modified after its execution by parol. The modification need not rest on any new consideration. Montgomery v. Am. Cent. Ins. Co. 108 Wis. 146, 84 N. W. 175; Brown v. Everhard, 52 Wis. 205, 8 N. W. 725; Kelly v. Bliss, 54 Wis. 187, 11 N. W. 488; Ruege v. Gates, 71 Wis. 634, 38 N. W. 181; Wis. S. F. Co. v. D. K. Jeffris L. Co. 132 Wis. 1, 111 N. W. 237.

But it is an essential part of this rule that the parol negotiations effective for modification must take place after the written instrument is executed and in effect. All such negotiations prior to or contemporaneous with the execution of the written instrument are merged in the writing and incompetent to contradict that writing. The bill of sale of the per■sonal property was, at the time of the-negotiations in question, deposited in the bank by the seller for delivery to the buyer upon payment by the latter of the purchase money. After the negotiations in question the buyer paid the purchase money and received the bill of sale. The parol agreement was therefore one made, if at all, before the final execution of the written bill of sale and merged in that writing. Braun v. Wis. R. Co. 92 Wis. 215, 66 N. W. 196; Owen v. Long, 97 Wis. 78, 72 N. W. 361; Caldwell v. Perkins, 93 Wis. 89, 67 N. W. 29. There was no error in excluding the evidence of tbe alleged oral modification of tbe contract.

By the Court. — Judgment affirmed.