Seeger v. Manitowoc Steam Boiler Works , 120 Wis. 11 ( 1903 )

Siebeckee, J.

Was it error for the trial court to receive-testimony tending to show, when the receipt of December 16,, 1895, for $200, “to balance boiler account in full,” was executed, that the parties made a contemporaneous agreement to-the effect that the receipt should not be deemed an acceptance of the boiler, and as not satisfactory to respondent under the contract of purchase? The contention that the written-receipt on its face imports more than a mere receipt seems not well founded. The language, “to balance boiler account in-full,” in its natural and ordinary significance, when applied to the transaction it covers, means what is usually understood in affairs of a commercial nature by “received payment in-full.” Such a receipt imports no more than that the amount of money specified was in fact received. When language in a receipt of this nature is applied to transactions between parties, which, under the circumstances, covers some agreement in addition to the written admission that money was in fact paid, then the receipt may present elements of a contract,. and would then come within the rule that a written contract ■cannot be varied, contradicted, or modified by parol evidence. Put no such situation is presented in this case. Twohy M. Co. v. McDonald’s Estate, 108 Wis. 21, 83 N. W. 1107; Tuley v. Barton, 79 Va. 387; White v. Merrell, 32 Ill. 511. The contention that the receipt in question is like the one in the case of Conant v. Kimball’s Estate, 95 Wis. 550, 70 N. W. 74, is not sustained. In that case the receipt for money was couched in language which, when applied to the surrounding facts and circumstances of the parties, showed it •covered some agreement in addition to the fact of a payment ■of money, and therefore was treated as a written contract, -and not open to explanation or contradiction by parol. See cases cited therein. The writing in the instant case must be held to be a mere receipt. In this view, it was competent for the parties to make an agreement to the effect that the boiler • should remain in place for the purpose of giving appellant an opportunity to remedy any defects, and .respondent to ascertain whether it would be satisfactory under the contract of purchase. Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641.

Another exception urged is that the finding of the referee •■and court upon the subject of the contemporaneous agreement is contrary to the clear preponderance of the evidence, in that it fails to disclose any defect in the boiler at the time ■of the last payment, of December, 1895. An examination -of the evidence convinces us that there is ample evidence sustaining these findings of the trial court. The record discloses that it was not seriously contested but that the boiler was detective. It shows appellant made repeated efforts, through a long period of time, after the last payment, to improve the .grates in the boiler and substitute new ones. The evidence shows that the last payment was not to be deemed an acceptance of the boiler, and therefore justifies the finding of ■facts in this branch of the case.

By the Court. — The judgment is affirmed.