
    Mueller and others, Appellants, vs. Cook and another, Respondents.
    
      December 12, 1905
    
    January 9, 1906.
    
    
      Deeds: Consideration: Parol evidence: Contract -partly executed: De-scission: Logging contract: Time: Waiver: Estoppel.
    
    1. When, parol evidence offered to show the real consideration for a deed does not contradict it, hut merely shows the other portions of an entire oral contract in part execution of which the deed was made, it is admissible.
    2. Upon a purchase of standing timber the vendees paid $24,000,’ which was named in the conveyance as the purchase price, but of which $4,000 was in fact paid for the advantage to them of having the vendors do the logging at $3 per thousand feet; and the vendors agreed in writing to do the logging at that rate. All this was done in pursuance of a prior oral contract between the parties. Held, that the agreement as to the logging was not wholly executory and was therefore not subject to rescission by the vendors for a mere breach thereof by the vendees which could he compensated for in money damages.
    •3. Defendants agreed to log certain timber for plaintiffs during the seasons of 1901-2 and 1902-3, and it was provided that the work should be done during the first season unless they were notified by plaintiffs, prior to July 1, 1901, not to do it until the succeeding season. Pursuant to notice, the work was not done in the season of 1901-2. On August 28, 1902, plaintiffs notified defendants that they had not yet made satisfactory arrangements for transportation of the logs and not to commence logging until such arrangements could he made. Defendants at once informed plaintiffs that if they wished the timber put in as agreed upon they must give notice thereof by September 10th. Plaintiffs gave no notice until November 11th, when defendants declined to go on with the work because the season was -too far advanced. Held, that plaintiffs had waived the provision of the contract as to the time of doing the work and were estopped to claim that the failure or refusal to do it in the season of 1902-3 was a breach of the contract.
    Appeal from a judgment of the superior court of Douglas •county: Chables Smith, Judge.
    
      Affirmed.
    
    Action to recover for alleged breach of contract.
    
      Complaint in substance: December 10, 1900, defendants conveyed 'the pine timber, estimated at 3,774,340 feet, suitable for saw logs on lands in Carlton county, Minnesota, for $24,000, and promise of a contract to log the same and put the logs on cars on the Eastern Eailway of Minnesota during the logging seasons of 1901 and 1902 and 1902 and 1903 for $3 per thousand feet, plaintiffs furnishing the wrapping chains necessary for the safe loading of such logs. A contract was accordingly entered into between the parties which provided, among other things, that defendants should do the work agreed upon during the first of the logging seasons mentioned, unless notified by plaintiffs prior to July 1, 1901, that they desired tbe same done the succeeding season. Tbe only practicable way of transporting tbe logs to plaintiffs’ mills,, wbicb tbe parties contemplated doing, was by means of said railway. Prior to November 11, 1902, because of tbe arbitrary conduct of tbe railway company, plaintiffs were unable to make a practicable arrangement for tbe shipment of tbe' logs, but on sucb date they did so and immediately notified defendants thereof, requesting them to proceed with tbe work, wbicb they peremptorily refused to do, whereby plaintiffs were compelled to employ another person to do sucb work, paying $4 per thousand feet, to their damage in tbe sum of $3,773.34:. For that they demanded judgment with interest from April 8, 1903, with costs.
    
      Answer in substance: Tbe selling of tbe timber and making-of tbe contract is admitted. After sucb making plaintiffs requested defendants from time to time not to commence logging operations because tbe former were unable to make satisfactory arrangements with tbe railway company for transporting tbe logs and they did not wish sucb operations commenced until such arrangements were perfected. Tbe economical cutting of tbe timber and handling of tbe logs under tbe contract required work to be commenced on or about September 10, 1902. About August 28th of sucb year plaintiffs notified defendants that they bad not yet made satisfactory arrangements with tire railway company and not to commence-logging oirerations until sucb arrangements could be made. August 29th thereafter defendants informed plaintiffs that if tbe latter desired tbe timber put in as agreed upon they must give notice thereof by tbe 10th of September following. Plaintiffs refused and neglected to give sucb notice and refused to allow defendants to- proceed with tbe logging operations prior to November 11, 1902, at wbicb time tbe season-was too far advanced to permit of sucb operations being commenced and tbe timber put in without large extra cost over-what would have been necessary bad they been permitted to-commence work as per contract, for wbicb reason they declined to enter upon tbe work as requested. Tbe logging of tbe timber after November 11, 1902, as alleged, is admitted.
    At tbe close of tbe evidence tbe defendants moved tbe court for a verdict in tbeir favor upon tbe ground that tbe evidence conclusively showed that plaintiffs were not entitled to recover. Tbe motion was granted and judgment rendered accordingly.
    For tbe appellants tbe cause was submitted on tbe brief of H. V. Gard.
    
    For tbe respondents there was a brief by Boss & Dwyer, and oral argument by W. D. Dwyer.
    
   Maesiiall, J.

Many questions are discussed in tbe briefs of counsel wbicb do not need more than a passing notice, if even that, as we view tbe case. On tbe record there are, at tbe most, two ruling propositions of law. ’ Strictly speaking, there is but one. Tbe other is significant only in that it renders tbe theory upon wbicb tbe verdict was directed, and in opposition to wbicb tbe learned counsel for appellants invites consideration of the many phases of tbe law regarding rescission of contracts, inapplicable. Tbe second proposition is one wbicb does not seem to have attracted tbe attention of counsel upon either side or of tbe trial court.

Tbe complaint by appropriate allegations states that tbe parties made a verbal contract, wbicb in its entirety called for tbe payment of $24,000 by appellants to respondents for certain pine timber land, and a written agreement obligating tbe latter to log tbe timber and place tbe manufactured product in tbe form of saw logs on cars of tbe Eastern Eailway of Minnesota for $3 per thousand feet, $20,000 of tbe $24,000 to be considered as tbe real purchase price of tbe land, — tbe price thereof independent of tbe logging feature, — and $4,000 as an equivalent for tbe opportunity to have tbe timber bandied as indicated at $3 per thousand feet; that in part execution of ■sucli entire verbal contract, as to one feature the land was ■deeded to appellants, they paying the $21,000 agreed upon, which, though named in the writing, in form, as the consideration therefor, measured the sale price of the land and the agreed advantage to appellants of having the timber handled as and at the price aforesaid; and that the verbal contract was further in part executed by the making of the stipulated agreement as to the timber.

Now if the amount named in the deed was the real consideration therefor, by itself, then at the time of .the alleged breach of the logging agreement it was wholly executory. If, however, the sum of $4,000 of the $24,000 named in the deed was paid respondents for the opportunity to have the timber logged and the logs put upon ears as aforesaid for $3 per thousand feet, then the logging agreement as part of the entire transaction was not wholly executory at the time of the supposed rescission. On the contrary it was executed on one side in a very substantial part and not subject to rescission by respondents for a mere breach of the sort claimed, readily remediable by rendering an equivalent for the damages in money. 2 Parsons, Contracts (9th ed.) 834; 9 Cyc. 645. That, of course, has nothing to do with the rule as to entire contracts, that complete performance on one side, unless waived by the other, is essential to put the other in default; that it is a condition precedent to. any right of action against such other. Except for such contracts, which do not include the one in hand, the absolute right of rescission by one on the ground of a substantial breach by the other, which may be readily compensated for in money damages, does not exist in case of contracts not wholly executory.

Appellants endeavored to establish that feature of the alleged transaction regarding payment of a consideration for the opportunity to have the timber handled for $3 per thousand feet, and the evidence was rejected. That is a ground of complaint. The theory of the learned court seems to have been that such evidence tended to contradict or vary a written contract, and so was incompetent under the familiar rule on that subject. In that error was committed. The fact that the consideration named in the deed was $24,000 did not militate against showing that such sum covered the sale price of the land and the advantage as to the logging as well. When parol evidence offered to show the real consideration for a deed does not contradict it, but merely shows those portions of an entire verbal contract, in part execution of which the deed was made, it is admissible. That is elementary. Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103; Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Lathrop v. Humble, 120 Wis. 331, 97 N. W. 905; Butt v. Smith, 121 Wis. 566, 99 N. W. 328. The rule that where persons elect to permit some part of an entire verbal contract to rest in parol, reducing the residue to writing, the part not so reduced may be established ali-unde such writing, is as well established as the one that a written contract is not subject to variance or contradiction by parol. So far as the former rule is inconsistent with the latter it is regarded as an exception thereto. Hubbard v. Marshall, 50 Wis. 322, 6 N. W. 497; Braun v. Wisconsin R. Co. 92 Wis. 245, 250, 66 N. W. 196; Caldwell v. Perkins, 93 Wis. 89, 67 N. W. 29; Corbett v. Joannes, 125 Wis. 370, 104 N. W. 69; 2 Wharton, Evidence (3d ed.) § 1051.

Erom what has been said we must view the ruling on the motion for a directed verdict as if the offered evidence, had it been received, would have established the facts which appellants purposed proving thereby. In that light the making of the written contract was, as before indicated, a mere incident of an entire transaction executed in part by payment of $4,000 for the opportunity of obtaining the logging agreement, which was not subject to rescission for a mere breach, if such breach occurred, since the resulting damages were easy of ascertainment and readily compensable by payment of a money equivalent.

Notwithstanding the foregoing, it seems the court properly decided that appellants, as a matter of law, were not entitled. -to recover. No breach of contract on respondents’ part was established. They were entitled to proceed with the logging ■operations in the ordinary way, which, according to the undisputed evidence, was to prepare for the winter’s work before there was any danger of being prejudiced in that regard by ■cold weather. There was nothing in the writing entitling appellants to put any restraint upon respondents’ liberty in that respect for the purpose of enabling them to obtain in advance •of work being commenced satisfactory arrangements .as to freight rates.. If they desired protection of that sort, they should have provided for it at the time .the writing was made. 'The contract itself seems to plainly contemplate that respondents should have definite information by July 1st, prior to the logging season in which the timber was to be cut, whether they were to be permitted to proceed with the work or not. It will ■be noted that respondents agreed to log the timber during the ■seasons of 1901 and 1902 and 1902 and 1903, with the proviso that the work should be done the first season unless they were notified by appellants prior to July 1, 1901, not to do the cutting until the succeeding season. In that we see a plain recognition of the importance to respondents of knowing by midsummer, prior to the commencement of the succeeding logging season, whether the timber was to be logged during -such season or not.

Respondents waived their right under the contract to the ■extent of permitting appellants to have until September 10, 1902, to elect whether they wanted the contract executed according to its terms. The latter’s conduct in allowing the time conceded to them to arrange their freight matter to elapse without notifying respondents whether to proceed or not, and in keeping silent in respect to the matter until November 11, 1902, waived the requirement for the timber to be cut during the ensuing season. Respondents did not refuse to log the timber; they did not terminate the contract. They claimed :no rescission of the agreement in their answer or evidence. They merely treated the conduct of appellants as waiving the provision of the writing, as regards putting in the timber during the logging season of 1902 and 1903. They in part waived their agreed liberty to proceed according to their own judgment in preparing for the logging during the season of 1902 and 1903, as a favor to appellants, and the latter waived the provision of the contract as to the time of logging the timber. That is the whole matter. There was no breach upon either side until appellants, disregarding respondents’ rights, proceeded to log the timber.

“Either party may waive any part of a contract, either expressly or by acts or declarations indicating a relinquishment of any provision or part of a provision, and without the performance of which, unless relinquished or waived, a recovery could not be had.” 9 Cyc. 646.

In this case the elements of waiver, implied agreement, and estoppel, strictly so called, as well, bar appellants from successfully alleging that respondents breached the logging agreement. The notification to the latter not to make any move to put in the timber until informed of satisfactory arrangements for the transportation of the logs having been made, and the notice back, in effect, that such arrangements must be completed so the work could proceed by September 10, 1902, if it was desired to have the timber put in during the succeeding season, and the failure to give notice in return till months after the required time, by necessary implication constituted a waiver of the contract as to the time of logging the timber, and a mutual agreement that such feature should not be regarded as material. Again, respondents having relied upon appellants’ attitude in the matter until a change thereof, if efficient as regards liability of the former, would seriously embarrass them, the latter are precluded from being heard to assert that the attitude which they voluntarily assumed did not evince in fact what it purported to indicate. The doctrine of estoppel in pais applies.

By the Gov/rt. — The judgment is affirmed.  