Tietz v. Tietz

62 N.W. 939, 90 Wis. 66, 1895 Wisc. LEXIS 239

• Court: Wisconsin Supreme Court
• Decided: April 3, 1895
• Status: Published

Opinion

Pinney, J.

1. It clearly appears from the plaintiff’s case-that there was an existing written contract between the parties, covering the entire subject matter in question between them, and that its provisions had not been performed. The plaintiff was to have the services of the defendant’s minor son until he arrived at the age of twenty-one years,, for his care, boarding, lodging, etc., upon the payment only of the small money consideration stated. The plaintiff could not maintain an action against the defendant as upon an implied assumpsit for the board, lodging, and medical attendance sued for, but was confined to what remedy he might-have upon the special written contract, which remained unperformed. It is very well settled that, when a -written or express agreement between the parties remains in force and unperformed, a resort to an implied contract cannot be-allowed. Baxter v. Payne, 1 Pin. 501; Bulger v. Woods, 3 Pin. 460; King v. Kerr, 3 Pin. 464; Maynard v. Tidball, 2 Wis. 34; Bradley v. Levy, 5 Wis. 400.

2. The plaintiff’s objection that it was error to receive the written agreement in evidence before the plaintiff had rested Ms case and the defendant had entered upon his defense is not tenable.' It was competent for the defendant to show by cross-examination of the plaintiff that there was a written contract between the parties in respect to the subject matter of his demand, and, when the plaintiff had identified the contract, it properly became a part of his cross-examination and part of his case. The objection to the exclusion of evidence to show what took place between the parties on the subject of the contract prior to its execution was not well taken. All prior negotiations or communications between the parties were merged in the written contract.

The plaintiff was rightly nonsuited.

By the Court.— The judgment of the circuit court is affirmed.