Coman v. Wunderlich

Marshall, J.

Upon the competent evidence this plain, simple issue, only, was for solution in this case: Was the jewelry, sent by the manufacturing company to respondent, such as that described in the written contract ? There was no defense of “fraud, therefore evidence to show that the real contract between the parties was different from that stated in the writing which they signed was improperly received. That is so by an elementary principie so familiar that we need only to suggest it. Parol evidence as to what occurred at the time of or prior to the making of a written contract is not admissible to vary or contradict it. The manufacturing company promised in writing to sell to respondent, and the latter prom *141 ised to purchase of the former, certain specified and described articles of jewelry agreed to include all belonging to such company’s $170.67 show case jewelry assortment, it being, expressly stipulated that the writing should be regarded as including every obligation of the company in respect to the matter. Nevertheless respondent, against objection by appellant’s counsel, was permitted to introduce evidence at great length respecting what was said at the time the contract was made, and tending to show that the company agreed orally that it should cover a duplicate of a certain case of jewelry exhibited at the time, and that, relying thereon, respondent signed the contract. In short, respondent was permitted to prove an oral agreement with stipulations differing materially from those in the written contract, while the suit was upon the latter. Though it was for a sale of certain articles' therein described, and upon terms therein mentioned, evidence was permitted of a sale by sample, and upon terms not mentioned in the writing. That was error,’ requiring a reversal of the judgment.

The error committed as aforesaid was emphasized by another in the instructions given to the jury. There was a conflict in the evidence as to whether the oral agreement, if provable, called for a duplicate of a particular lot of jewelry exhibited. The court not only permitted the controversy, to-arise as to what the oral contract was, but instructed the jury,, in effect, that the case was to turn thereon. The jury were told to weigh the conflicting evidence in that regard and to find according to their judgment as to which side testified to the truth. Further, though a serious conflict in the evidence existed, the jury were told, in effect, that the contract made was for a duplicate of the lot of jewelry exhibited.

We do not overlook the fact that counsel claims appellant was not prejudiced because the oral contract was the same as the written contract and that .the court used the language referred to with that view. To us it seems that the contract tes- *142 titled to by respondent was materially different from the written agreement.

The court committed further error in permitting respondent to introduce evidence of a sale by appellant’s agent to another party on the same day the sale in question was made, and that such party returned the goods sent him because not according to the agreement. That circumstance had nothing whatever to do with the case in hand. It was manifestly brought to the attention of the jury in a way prejudicial to appellant. They must have understood that it had a bearing on whether the contract in question was as testified to by respondent and whether there was a breach thereof. Upon what theory the evidence was permitted is not perceived. Similar evidence was admitted in Standard Mfg. Co. v. Slot, 121 Wis. 14 , 98 N. W. 923 , to establish a fraudulent intent, and the ruling of the court in that regard was condemned. Of course, if it could have no bearing on the question of fraudulent intent, or if, having such bearing, it was not material, as held in that case, though the defense' of fraud was pleaded, it had no legitimate place in the trial of the issue here, where there was no such plea.

Respondent testified the goods sent were not rolled gold as promised in the writing, but were brass. To test his competency to testify on that subject, an article of jewelry was exhibited to him and he was interrogated as to whether it was gold or brass. The question was objected to and the objection sustained. It bore on a vital point in the case. We are unable to perceive why it was not competent. The question was asked on cross-examination. A wide range of inquiry is permitted in that situation to test the credibility of a witness, especially where he testifies to a matter falling within the scope of expert knowledge.

Further complaint is made because the court, in instructing the jury, called to their attention in considerable detail the evidence on the part of respondent as to the appearance *143 of the goods when received, while saying nothing about the evidence on the other side describing the goods shipped. Moreover, that, in speaking of respondent’s evidence in that regard, language was used tending to create in the minds of the jury an unfavorable impression of the goods in question, saying: “Some of the stuff, some of the stones in the rings and pins, etc., were even dropped out and lying loose in the case, and that the others were very poorly set in the jewelry.” This assignment of error is not without merit. A trial judge should not, in charging the jury, give special significance to the evidence on one side of the controversy by speaking of it in detail, especially to those parts favorable to that side, while not mentioning the opposing evidence; nor should Re so charge the jury as to refresh their memory as to what was testified to on one side of the controversy while not doing so as to what was testified on the other. This is in harmony with what was said in Kavanaugh v. Wausau, 120 Wis. 611 , 98 N. W. 550 .

Erom the foregoing it follows that the judgment appealed from must be reversed and the cause remanded for a new trial.

By the Court. — So ordered.