Seitz v. Zukowski

215 N.W. 939, 194 Wis. 78, 1927 Wisc. LEXIS 43

• Court: Wisconsin Supreme Court
• Decided: November 8, 1927
• Status: Published

Opinion

Stevens, J.

The evidence received upon the trial supports the verdict. The only questions presented by the appeal are whether the court erred in the reception of evidence.

The proof establishes the fact that on sixty per cent, of the joints of the granite blocks that formed the exterior of the' mausoleum the bearing surface of the blocks was less than two inches in width, instead of being as wide as the blocks 'themselves. It further appears that the balance of the space forming the joints between the blocks was filled with broken stone and concrete.

Appellants urge that the court erred in receiving evidence that this construction constituted a material defect in the mausoleum, because the witnesses who testified to that effect had never planned nor built a mausoleum. We are unable to perceive how the problems connected with the building of the walls of a mausoleum differ from those encountered in the erection of any similar structure used for other purposes so as to disqualify the witnesses who had large experience' in the construction of similar walls in other buildings. Indeed it seems self-evident to one not experienced in the construction of buildings that the method of filling the space behind the'stone slabs with chips of stone and concrete must result in a structure that is inferior to one built out of solid blocks of granite.

The court properly received evidence of what was said before the contract was signed; — not for the purpose of contradicting the written contract; but to explain ambiguous terms used in the contract. Appellants recognized the necessity of some evidence to explain the terms used in the contract. In their complaint they alleged that the mausoleum was to be constructed according to plans and specifications submitted, which are not a part of the written contract. In their brief they concede that such terms as “Cross with roses as shown” and “Newburg special” may have required oral testimony to show what the parties intended by the use of these terms.- Very clearly this and other terms of the contract were so ambiguous as to require the receipt of oral testimony to ascertain the intent of the parties as expressed by the language.used. Boden v. Maher, 105 Wis. 539, 543, 81 N. W. 661.

“Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to say what the parties to a contract intended to express by the language adopted in making it, is quite another thing. The former'is not permissible. . . . The latter is permissible and is often absolutely essential to show the real nature of the agreement.” Radtke v. Rothschild W. P. Co. 158 Wis. 271, 276, 148 N. W. 866. “The office of such testimony is, within the meaning of the terms employed in the writing, to render certain that which-is uncertain,- and to determine just what in fact the writing was intended to express.” Hammond v. Capital City Mut. F. Ins. Co. 151 Wis. 62, 67, 138 N. W. 92.

Such parol negotiations became a part of the characterizing circumstances that sürround the execution of a contract which the court may well receive in order to put itself in the place of the parties in- order to ascertain the meaning of the language used in the contract. Jones v. Holland F. Co. 188 Wis. 394, 398, 399, 206 N. W. 57. The fact that the parties contracted with reference to the particular meaning of the words used is treated as a circumstance within the rule that.the-circumstances characterizing the making of a contract may be shown to aid in construing it. Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 356, 128 N. W. 43.

• The proof .received-in this case did not vary the terms of the written contract, but merely placed the court and jury “as nearly as may be in the position in which the parties stood when they made their contract.” Burton v. Douglass, 141 Wis. 110, 116, 123 N. W. 631.

We are satisfied that the court committed no error in the reception of evidence, that the parties have had a fair trial, and that they must abide by its result.

By the Co%irt. — Judgment affirmed.