Nelson v. Kress ( 1911 )

Marshall, J.

The Judgment must be affirmed. Neither of the reasons advanced in favor of a reversal seems to have sufficient merit to call for more than brief consideration.

The first suggestion is that after the stock was transferred to respondent there was no controversy left to be settled and so the action should have been dismissed. The transfer of the stock was made pursuant to an agreement in writing to the effect that the litigation might proceed to determine the rights of the parties as to the disputed ownership. That is the fair import of the written agreement as we read it.

The next proposition is that the agreement pursuant to which the stock was issued was in writing, therefore parol evidence of title was incompetent. The agreement respecting the formation of the corporation to combine the two newspaper properties, was not reduced to writing. Counsel refer to papers which were made in the course of carrying out the verbal contract. The whole agreement never was put in writing or intended to be. That is quite plain from the record. It is a familiar rule that where there is an entire verbal contract and a writing merely made in part execution thereof the balance may be established by parol. Burhans v. Johnson, 15 Wis. 286; Agnew v. Baldwin, 136 Wis. 263, 116 N. W. 641.

The last proposition is that parol evidence was not sufficient to overcome the written evidence as to appellant’s ownership, referring, obviously, to the certificate of stock and the records of the corporation as the written evidence. But the case on the part of respondent did not rest wholly upon parol evidence. There was the writing given by appellant to respondent and his associate, agreeing in these words: “If I sell my ten shares in the Herald-Press Publishing Company I will pay Horal Nelson and William E. Brandt the difference in value between one half and one third of the stock.” True, looking at the language of the paper alone, it suggests, clearly, absolute ownership of the ten shares of stock by appellant. But the pledge to account for three and one-third shares, the amount in controversy here, evidences, very clearly, that the paper does not contain all the agreement between the parties with reference to the stock, and was not intended to. Why appellant so pledged himself does not appear in writing. No consideration is mentioned therein, though it would seem there probably was one. .When, by aid of'the parol evidence, we discover the whole contract, the ambiguity is explained. It thereby appears that the paper was intended to be the written evidence that appellant held three and one-third shares merely as trustee for the two persons he agreed to account to in accordance with the agreement to combine the printing establishments. It is also plainly seen that the words “my ten shares” merely refer to the status of the legal title. On the whole the evidence abundantly supports the finding of the court that the three and one-third shares, though carried on the books of the corporation in the name of appellant, were, as between him and respondent, the property of the latter.

By the Court. — The judgment is affirmed.