Hammond v. Capital City Mutual Fire Insurance , 151 Wis. 62 ( 1912 )

ViNJE, J.

Tbe principal error assigned is that tbe plaintiff was allowed, against objection by defendant, to testify as to tbe substance of conversations bad between himself and defendant’s 'agent, Johnson, previous to tbe issuance of tbe policy, wherein tbe different ownerships of tbe property contained in tbe hotel building was claimed to have been disclosed to Johnson and the property pointed out to him, and wherein, plaintiff testified, it was expressly agreed tbat tbe policy to be written should cover bis individual property, tbe individual property of bis brother, Zera Hammond, and tbe partnership property. Tbe policy insured Hammond Bros. It appeared that in tbe building described in tbe policy tbe plaintiff and bis brother, Zera Hammond, carried on a partnership business known as Hammond Bros., 'and bad partnership property therein; that plaintiff and bis brother each also bad individual property therein, and the question arises, What is the meaning of the term “Hammond Bros.” as used in the policy ? Is it descriptive of the brothers Zera and Philo Hammond, or is it used to designate the partnership ? If the latter, then it would exclude individual property. If the former, it would include individual as well as partnership property. Castner v. Farmers’ Mut. F. Ins. Co. 46 Mich. 17, 8 N. W. 554; Foster v. U. S. Ins. Co. 11 Pick. 85; Lenagh v. Commercial Union Assur. Co. 77 Neb. 649, 110 N. W. 740; Peck v. New London Co. Mut. Ins. Co. 22 Conn. 575. See, also, Siemers v. Meeme Mut. H. P. Ins. Co. 143 Wis. 114, 126 N. W. 669, and cases cited. The ambiguity in the team became apparent when by extrinsic evidence it was made to appear that the building in which the insured property was located contained property owned individually and also property owned by the partnership. Such ambiguity was emphasized by the term “household” furniture, used in the policy in question, instead of the term “hotel” furniture, used in the superseded policy, and also by the terms “family wearing apparel,” “family stores and supplies,” “watches,” “jewelry,” etc., presumably not owned by a partnership in the hotel and saloon business. So it appears that the trial court was correct in holding that upon the facts disclosed there was a latent ambiguity in the contract of insurance, viz., Whose property was insured under the term “Hammond Bros.” ? To solve such ambiguity he permitted plaintiff to testify to what was said upon that subject by the parties at the time the contract was entered into, for the purpose of ascertaining in what sense they used the term “Hammond Bros.,” whether as descriptive of the persons Zera and Philo Hammond or as designating the partnership. Was the reception of such testimony error ? The rule is elementary that parol testimony is not admissible to contradict, vary, add to, or take from the terms of a valid written instrument. 1 Greenl. Ev. (15th ed.) § 275; 2 Taylor, Ev. (10th ed.) § 1132; Jones, Ev. (2d ed.) § 434 (437-439). But when, upon applying tbe writing to tbe subject matter to wbicb it relates, a latent ambiguity appears therein, then parol testimony of tbe facts and circumstances surrounding its execution may be received to solve tbe ambiguity. Jones, Ev. (2d ed.) § 453 (458, 459). Sucb testimony neither contradicts, varies, adds to, nor takes away from tbe writing. It merely aids in determining tbe true meaning thereof. Boden v. Maher, 105 Wis. 539, 81 N. W. 661; Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 128 N. W. 43. Tbe meaning so arrived at must not be inconsistent with tbe language of tbe writing, but it may limit sucb language to a particular meaning wbicb is included therein, and exclude another meaning wbicb tbe language may also bear. Tbe office of sucb testimony is, within tbe meaning of tbe terms employed in tbe writing, to render certain that wbicb is uncertain, and to determine just what in fact tbe writing was intended to express. Boden v. Maher, 105 Wis. 539, 81 N. W. 661. That such ambiguity may be solved by parol proof of extrinsic facts and circumstances surrounding tbe execution of tbe writing is tbe general doctrine announced by text-writers and courts alike. 1 Greenl. Ev. (15th ed.) § 297; Jones, Ev. (2d ed.) § 453 (458, 459). That parol proof of conversations or negotiations bad between tbe parties at tbe time of tbe execution of tbe writing wbicb serves to construe a latent ambiguity therein is also admissible, is established by both early and late decisions of our court. Ganson v. Madigan, 15 Wis. 144; Becker v. Holm, 89 Wis. 86, 61 N. W. 307; Rib River L. Co. v. Ogilvie, 113 Wis. 482, 89 N. W. 483; Burton v. Douglass, 141 Wis. 110, 123 N. W. 631; Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 128 N. W. 43; Pedelty v. Wis. Zinc Co. 148 Wis. 245, 134 N. W. 356. True, a number of cases may be found in wbicb language to tbe contrary is used in tbe opinions, and also a few cases in wbicb a decision has been made not in harmony with tbe rule here announced. But no good ground is perceived why parol proof of sucb conversations or negotiations is not admissible to solve a latent’ambiguity in a writing, thus enabling the court to determine upon what precise subject matter the minds of the parties met. Nothing in the writing is thereby contradicted, nothing subtracted, and nothing added. The meaning read out of the writing in the light of such parol proof must be included therein; that is, the language used must be susceptible of the construction which the parol testimony tends to support. The conversations or negotiations are resorted to merely for the purpose of ascertaining the actual meaning ascribed to the ambiguous term by the parties themselves when the writing was executed. Such conversations or negotiations, therefore, become in a sense characterizing circumstances surrounding the execution of the writing, as expressed in Klueter v. Joseph Schlitz B. Co. 143 Wis. 347, 128 N. W. 43, and Pedelty v. Wis. Zinc Co. 148 Wis. 245, 134 N. W. 356, and serve to show what the writing meant when it was made and what it now in fact means, as expressed in Burton v. Douglass, 141 Wis. 110, 123 N. W. 631. So we conclude there was no error in the reception of the testimony to which objection was made.

It is urged that since the policy was retained hy plaintiff for a period of more than fourteen months without making any objection to the term describing the assured, the written contract is conclusively presumed to represent the actual agreement. Both the trial court and this court have so treated the policy. It is held to represent the actual contract made, and in order to determine what that contract was and is, as written, the testimony which aided in rendering certain the meaning of the term “Hammond Bros.” was received.

Error is also assigned because the evidence does not support the first finding of the jury, and because the court refused to set aside findings 2, 3, and 4. A careful examination and consideration of the evidence does not convince us that the assignment of error is well taken.

By the Court. — Judgment affirmed.