Townsend v. Peasley , 35 Wis. 383 ( 1874 )

Cole, J.

We are inclined to agree with the counsel for the plaintiffs, that the contract sued on was not void under the statute of frauds. It is claimed that it created an interest in the realty and in the products of the soil for an indefinite period, and must therefore be in writing, in order to be valid. The contract, as set out in the complaint and attempted to be proven on the trial, was, in substance, that if the plaintiffs'would put a pump on the ground then being worked by them, and drain the water from the diggings which the defendant was working, the defendant agreed to give or pay one-sixth part of the mineral which he might take out below where the water would have stood had not the ground been drained by the plaintiffs’ pump. The counsel for the plaintiffs insist that this contract does not create an interest in lands, within the meaning of the statute of frauds, but is essentially the same as any other contract for the performance of services upon the real estate of another, like the erection of a building, digging a well, or building a fence. If the analogy between this contract and one to perform labor on the land of another be correct — and we confess we are unable to perceive any distinction in the two cases, —then it is very apparent that the statute does not apply to it. Frear v. Hardenbergh, 5 Johns., 271; Lower v. Winters, 7 Cowen, 263. It does not create an interest or estate in lands, but only provides the amount of compensation which the plaintiffs were to receive for the services which they were to perform, namely, drain the water from the ground upon which the defendant was mining. It is true, the plaintiffs call this one-sixth of the mineral which they were to receive, “ rent,” but this is evidently an inaccurate use of that word. It was more properly the measure of compensation which they were to receive for draining the defendant’s mines. It was not otherwise than an agreement to pay so much money for the ser vices which the plaintiffs were to' perform. So we should feel constrained to overrule the objection that the promise of the defendant was within the statute, if this were the only difficulty in the way of a recovery; but it is not so.

On the same day that this parol agreement was made, the parties made a contract by which the defendant leased to the plaintiffs a certain portion of his lands, defined by metes and bounds, for'mining purposes. This lease was reduced to writing and executed by the parties on the next day after the alleged contract sued on is said by the plaintiffs to have been made. As a consideration for the lease, the plaintiffs covenanted and agreed to work the tracts of land demised, in a good and miner-like manner, “ and to use such machinery as may [might] be necessary to unwater and work said tracts or mines; and to payas rent to'said first party” one-sixth part of the mineral raised by them. Now it seems to us the effort is to prove a parol agreement which really relates to the subject-matter of the written lease, and in effect adds an additional consideration for the covenants of the plaintiffs as there contained. The parol contract is essentially a part and parcel of the agreement which was reduced to writing, and which, upon well settled principles, we must assume contains the final stipulations of the parties. It is not claimed that anything was omitted from the written lease through fraud or mistake. It seems that the lease was drawn by Addison A. Townsend (a son of one of the plaintiffs), the next day after the terms of the lease were agreed upon, and after the making of the alleged parol contract to pay the one-sixth part of the mineral which should be raised by the defendant from his ground drained by the plaintiffs’ pump ; and he says that he asked the parties at the time if the written contract “had all in it” and that they were satisfied with it. The written lease provided that the plaintiffs should use such machinery as might be necessary to unwater “and work said tracts;” and it is not claimed that they have done any more than drain the water from their own mines by the pump which they have used. If the plaintiffs stipulated for compensation for a benefit which would result incidentally to the defendant from their doing what the lease contemplated the}1- should do, this condition should have been incorporated in the written instrument. For it was a part of the consideration for the covenants there entered into, if ever such a stipulation was made.

The counsel for the plaintiffs contends that’ the parol contract was not merged in the written lease, but was an entirely distinct and independent agreement. But it seems to us that it related to the same subject matter, and can not be separated from it. We can not see how the case would be different if the defendant were to insist upon his right to prove by parol that the agreement was that he was to have a one-fourth part of the mineral raised by the plaintiffs, instead of the one-sixth stipulated for in the lease. With equal reason it might be claimed that the defendant could show another and separate contract in regard to the amount of rent to be paid by the plaintiffs, as that the plaintiffs may show that the consideration for the performance of the covenants on their part was something different from that mentioned in the lease. The evidence in both cases is to be excluded, under the rule recognized and enforced by all the authorities on the subject, that “ parol contemporaneous evidence is inadmissible, to contradict or vary the terms of a written instrument.” Of course the intelligent counsel for the plaintiffs does not question the entire correctness of this rule of evidence, but he contends that it is not applicable to the case before us. He insists that the subject matter of the two contracts is distinct and different, and that the previous parol contract bj which the defendant agreed to pay the value of one-sixth of all the mineral which he should raise from ground drained by the plaintiffs’ pump, was not merged in the written lease subsequently executed.. But it seems to us this view is untenable, and that we must assume that the written lease contains the whole engagement of the parties in regard to draining and working the ground. The plaintiffs would have the court infer that they were to be paid an additional compensation to that mentioned in the lease, for “ using such machinery as may be necessary to unwater and work said tracts or minesin other words, that a parol contemporaneous contract was made, by which they were to be paid another and additional consideration, from that mentioned in the written instrument, for an advantage which might result to the defendant from a performance of the covenants they had undertaken to perform. This is really substituting a new and different contract for the one the parties entered into; and we think all the evidence relating to this parol contract should have been excluded from the consideration of the jury. The fact that no such agreement was inserted in the lease, affords a conclusive presumption that it was not in accordance with the final understanding and engagement of the parties. On the trial, the court held that this parol contract might be shown, and in various ways ruled contrary to these views.

We therefore think the judgment must be reversed, and a new trial ordered.

By the Court. — So ordered.