Herbst v. Lowe

Cassoday, J.

The preliminary agreement drawn by Klip-pel, and signed by the parties at Richfield on or before November 15, 1882, was lost before the trial. The testimony as to the contents of that agreement was in conflict, and hence the findings of the jury thereon may be accepted' as verities. According to those findings, that agreement was procured by false representations of the defendant as to his right to sell the agency; but the agreement for the purchase was not finally consummated until November 28, 1882. Then the papers were drawn by Haase at West Bend. They consisted of a deed of all the real estate in question to the plaintiffs, executed November 28,1882, by the defendant, reciting a consideration of $2,900, and a bond executed by the defendant at the same time to the plaintiffs in the *320 penal sum of $1,000, conditioned, in effect, that if tbe defendant should be unable to furnish the agency of the McCormick machine to the plaintiffs in person, then he, having the agency, thereby bound “himself to go and to join in copartnership with . . . the plaintiffs for the sale of said McCormick machines,” and if he fulfilled his agreement, then the obligation was to be “ null and void, otherwise in full force and effect.” In consideration of that conveyance and that bond, and as an equivalent therefor, the plaintiffs at the same time paid to the defendant $500 cash, and also delivered to him their four several joint notes, in the aggregate amount of $2,400, secured by their joint mortgage on said real estate. The jury found that the plaintiffs received and accepted the deed and bond, and executed and delivered the notes and mortgage, with the understanding that the agency was thereby conveyed to them. The deed, bond, notes, and mortgage, having all been executed and delivered at the same time, must be taken together and construed as one instrument, for the purpose of determining the character of the transaction and the intention of the parties. Gillman v. Henry, 53 Wis. 468 et seq.; Evenson v. Bates, 58 Wis. 24 ; Kimball v. Balter, 62 Wis. 529 ; Dunlap’s Adm’r v. Wright, 62 Am. Dec. 506 ; Newbegin v. Langley, 63 Am. Dec. 612 . Thus taken, they seem to cover the whole transaction and leave no room for doubt, uncertainty, or ambiguity with respect to it. Ibid. The simple conditions of the bond were that, if the defendant failed to furnish the agency, he would go into partnership with the plaintiffs. He did fail to furnish the agency, and did go into partnership with them, as agreed. This was a complete satisfaction of the obligations of the bond.

The rule is universal that, in the absence of fraud or mistake, proof of antecedent or contemporaneous verbal agreements between contracting parties cannot be received to alter or control their written agreement. Ibid.; Hubbard *321 v. Marshall, 50 Wis. 322 ; Hooker v. Hyde, 61 Wis. 208 . This is on the theory that all such prior negotiations are either merged in or excluded by the contract finally made. The same is true in respect to any prior preliminary agreement, in so far as it is covered by, or in conflict with, the final contract. Bailey v. Wells, 8 Wis. 141 ; Sweet v. Mitchell, 15 Wis. 641 ; Ferguson v. Weatherford, 4 J. J. Marsh. 195; Moale v. Hollins, 11 Gill & J. 11; Oiler v. Gard, 23 Ind. 212 ; Vanderkarr v. Thompson, 19 Mich. 82 ; Kerr v. Calvit, 12 Am. Dec. 537 ; Whitney v. Smith, 33 Minn. 124 .

Contrary to these principles, the jury found, from the parol evidence, that the papers drawn November 28, 1882, were received and accepted by the plaintiffs “ with the understanding that the agency aforesaid was thereby conveyed to them.” This was covered by and in direct conflict with the conditions of the bond. There is no finding that there was any mistake made in the execution of any of the papers; nor that there was any fraud or deception practiced upon the plaintiffs as to the contents of the bond or any of the papers. In the absence of such fraud or mistake, the plaintiffs were conclusively presumed to know the contents of the papers, and were bound by the conditions, provisions, and agreements therein contained. Fuller v. Madison Mut. Ins. Co. 36 Wis. 603 . It will not do for men to enter into a contract, and then, when called upon to abide by its conditions, say that they did not read it, or were unaware of what it contained. Sanger v. Dun, 47 Wis. 620 .

It follows that so much of the answer of the jury to the seventeenth question as found that the plaintiffs received and accepted the deed and bond with the understanding that the agency was thereby conveyed to them, was contrary to the conclusive, and hence undisputed, evidence. Erom -what has been said it conclusively follows that the first, second, third, fourth, and fifth findings of the jury, as *322 to -what occurred, between the parties prior to November 28, 1882, were wholly irrelevant and immaterial, and did not, with the other findings referred to, authorize a judgment in favor of the plaintiffs. The seventh finding Avas to the effect that, at the time of the execution and delivery of the bond, the defendant did not in good faith intend to endeavor to procure for the plaintiffs an appointment from the company to the agency. But, by the written contract then made, the defendant did not agree to procure such appointment, but merely that, if he was unable to procure the agency, he would go into partnership, which he did. If the defendant failed to procure the agency, then, by the express terms of the written agreement, he was simply to go into partnership, which he did. Such being the contract between the parties, and its conditions having been thus performed by the one party and accepted by the other, it would be absurd to hold that the plaintiffs are still in a position to vitiate such contract, even if the defendant did not at the time “ in good faith intend to endeavor to procure ” the appointment. The consequence of a failure to perform that condition of the bond having been expressly provided for in the contract itself, and then finally acted upon by all the parties, must be regarded as a satisfaction of the agreement, regardless of the question whether the absence, at the time, of such intent “ to endeavor to procure ” could, under other circumstances, have been regarded as such a false representation of a then existing fact as might have avoided the contract. Whether the mere absence of an intent to perform, a promise as agreed, standing by itself, can be made available in an action a.t Iuav as a tort, may be doubtful, and possibly the decisions may be in conflict, as claimed by counsel. But the view we have taken of this case renders it unnecessary to determine it here. We are all agreed that there has been a mistrial.

By the Court.— The judgment of the circuit court is re* versed, and the cause is remanded for a new trial.