Lamoreux vs. Huntley, Adm'r, etc. and others.

In this view of the case, the court did not err in not treating W. O. Lamoreux as an innocent purchaser without notice of the claims of Myers; nor did the court err in refusing to instruct the jury that W. O. Lamoreux could not be bound by the transactions between the deceased and O. H. Lamoreux unless he had actual notice of the claim of Myers, the deceased. Upon all the evidence, we think there was no error in admitting in evidence the declarations of O. H. Lamoreux, after he had conveyed the premises to W. O. Lamoreux, and after Myers had actual notice of that fact, if the evidence shows he had such notice. We think the whole evidence shows that the title held by W. O. Lamoreux was held for the benefit of O. H. Lamoreux, or, if not so held, W. O. Lamoreux permitted O. H. Lamoreux to deal with it as though held for his benefit, and sanctioned what was done by him in regard to it.

The objections to the evidence of the declarations of the deceased as to his ownership of the land, made while he was in possession of the same, and that he was not holding possession as tenant of the grantor of the plaintiff, we think were properly overruled. The evidence was admissible under the rule laid down by this court in the cases of Kelley v. Kelley, 20 Wis. 443; Meade v. Black, 22 Wis. 241; Roebke v. Andrews, 26 Wis. 311,-as well as by the cases cited by the late Justice PAINE in his opinion in the case last above cited.

The case seems to have been fairly tried upon both sides, and the verdict of the jury is fully sustained by the evidence, and we find no errors in the record which would justify a reversal of the judgment.

By the Court. The judgment of the circuit court is affirmed.

VOL. 68-3

Kickland vs. The Menasha Wooden Ware Co.

KICKLAND, Respondent, vs. THE MENASHA WOODEN WARE COMPANY, Appellant.

December 21, 1886 — January 11, 1887.

VENDOR AND PURCHASER OF LAND. (1) Consideration: Parol evidence. (2) Statute of frauds. (3) Agency: Ratification. (4) Apportionment.

1. A consideration in addition to that expressed in a deed may be shown by parol.

2. An oral agreement to pay a consideration in addition to that expressed in a deed is valid.

8. An agent, having authority to purchase certain land for a corporation, paid a certain sum therefor, and agreed to pay a further sum at a future time. The deed to the corporation expressed only the consideration already paid. The corporation took possession of the land and afterwards sold it. Held, that the corporation was bound by the agreement to pay the additional consideration.

4. The purchaser of land agreed that if he should sell it at an advanced price he would pay one half of the profits of such sale to his grantor. He afterwards sold the land, together with another tract bought from other parties on similar terms, for a gross sum. Held, that the amount to be paid to his grantor should be determined by an apportionment of the sum received according to the respective values of the tracts sold.

APPEAL from the Circuit Court for Portage County. Action to recover the sum of $300 alleged to be due to the plaintiff as the balance of the purchase money of a tract of land sold by him to the defendant company. The answer was a general denial. The facts are sufficiently stated in the opinion. There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed. For the appellant the cause was submitted on the brief of Raymond & Haseltine. They contended, inter alia, that a contemporaneous oral agreement for the payment of an additional sum to that specified in the deed cannot be upheld. Schermerhorn v. Vanderheyden, 1 Johns. 139; Howes v. Barker, 3 id. 506; Maigley v. Hauer, 7 id. 341; Win

Kickland vs. The Menasha Wooden Ware Co.

chell v. Latham, 6 Cow. 682-690; Benedict v. Lynch, 1 Johns. Ch. 370; Morse v. Shattuck, 4 N. H. 229; Fishback v. Woodford, 1 J. J. Marsh. 84; Williamson v. Berry, 8 How. 495, 563-4. Cases holding that the acknowledgment of the receipt of the consideration expressed in the deed is not conclusive, are clearly distinguishable. M'Crea v. Purmort, 16 Wend. 460; Shephard v. Little, 14 Johns. 210; Bowen v. Bell, 20 id. 338; Wilkinson v. Scott, 17 Mass. 249; 30 Am. Dec. 117. This court has allowed the consideration to be inquired into, but never for the purpose for which this action is brought. Frey v. Vanderhoof, 15 Wis. 397; Farmers' L. & T. Co. v. Comm. Bank, id. 424; Hannan v. Oxley, 23 id. 519; Horner v. C., M. & St. P. R. Co. 38 id. 165. Before a recovery could be had in a case like this, an action must be maintained in equity to reform the deed. Again, the oral contract for the sale of the lands was void by the statute of frauds. It became valid only when reduced to writing and signed. And that part of the agree ment, if any, which was not reduced to writing is still within the statute and void. See Sugden on Vendors, ch. 4, sec. 8, subd. 2, 3; 3 Sutherland on Damages, 137.

For the respondent there was a brief by Cute, Jones & Sanborn, and oral argument by Mr. Jones.

ORTON, J. In 1878 one E. D. Smith was director and superintendent, and one Henry Hewitt, Jr., was director, of the defendant company. Hewitt, on behalf of the company, negotiated a bargain with the plaintiff for the purchase from him of a strip of land one rod wide, lying along the Wisconsin river, including lakes and bayous leading into the river, for rafting and booming purposes, on lots 1 and 2, in section 15, town 24, range 7 east, for the use of said company; and Smith, on behalf of said company, consummated said bargain by paying the said plaintiff down $100 and by receiving a deed of conveyance to said company from said

Kickland vs. The Menasha Wooden Ware Co.

plaintiff of said premises. The said $100 was the nominal consideration in said deed, but it was a part of said bargain that, in addition to said $100 named in the deed and as part of the consideration of said purchase, whenever and at such time as the said company shall sell said premises it shall pay to said plaintiff one half of the excess it shall receive as the consideration of such sale over and above said $100, after deducting from the excess costs, expenses and improvements, as the whole of said consideration. About the same time the company so purchased of the said plaintiff and so agreed, it purchased of one Jessie Martin and one John Riches a tract of land of about ten acres adjoining the premises so purchased of the plaintiff, by and through the agency of said E. D. Smith, and on behalf of the company; and it was agreed that $300 should be the nominal consideration of the conveyance thereof, but that whenever the company should sell said land, it should pay to them one half of the consideration of such sale over and above said $300, deducting costs, expenses, and improvements, which, together with the said $300 paid and named in said conveyance, should constitute the full consideration of said purchase; and the company received a deed of said Martin and Riches for that consideration and on such condition, which, in effect, was the same agreement as to a future sale of the premises as the one made between the company and the plaintiff.

The said Smith had said deeds duly acknowledged and recorded, and the company entered into possession of the premises. In 1882, the company, without making any improvements upon the premises purchased of the plaintiff, but having made some improvements on the premises purchased of said Martin and Riches, sold the whole of both of said premises to the Webster Manufacturing Company for $2,000, and the purchase money was paid into its treasury. This deed was executed by E. D. Smith as the then president, and by H. S. Smith as the secretary, of the company. The contingency

Kickland vs. The Menasha Wooden Ware Co.

upon which the balance of the purchase money has become due and payable having transpired, the plaintiff now demands judgment for one half of the amount for which said premises so conveyed by him to the company was sold in excess of said $100, and deducting costs, expenses, and improvements, if any, to be ascertained by the proportionate value of the two premises or tracts of land so sold and conveyed to the company, which sum so demanded he alleges to be $300. These are substantially the facts proved.

In disposing of the questions raised on this appeal, it will be unnecessary to specially refer to the several errors complained of in admitting evidence, in instructing the jury, or in refusals to instruct as asked by the appellant; for the questions arise upon the mere statement of the facts and are not difficult of solution. In the order in which these questions are discussed in the brief of the learned counsel of the appellant, they are:

First. That the terms of the deed as to the amount of the consideration cannot be changed by parol. There was formerly some conflict in the authorities upon this question, but since the case of Hannan v. Oxley, 23 Wis. 519, it has not been an open question in this state. It was there held "that parol proof may be given to show an additional consideration not inconsistent with the deed." See authorities cited in the opinion. This case has been frequently followed by this court. Horner v. C., M. & St. P. R. Co. 38 Wis. 165; De Forest v. Holum, 38 Wis. 516.

Second. That this agreement to pay more than the consideration named in the deed is void by the statute of frauds. It is not perceived how this question can be raised in such a case. The deed is valid as a conveyance of the land, and the respondent does not seek to impeach it or to change it in any manner as a valid conveyance. He only seeks to prove by parol what was the whole consideration of the sale, and that a considerable part thereof has not