
    Clifford vs. Baessman.
    Evidence. When toritings in evidence may he explained hy parol.
    
    1. A writing which does not itself vest or pass or extinguish any right, hut is only used as evidence of a fact, maybe explained hy parol evidence.
    2. Thus, where the terms of a parol contract between the parties were in dispute, and letters of the appellant, written some weeks after the making of such contract, were put in evidence hy the respondent, and were expressed in terms from which the jury might and probably did draw inferences favorable to the respondent’s view of the contract, it was error to reject parol evidence offered by the appellant to explain them.
    APPEAL from tke Circuit Court for Outagamie County.
    Action to recover tke price of logs alleged to kave keen sold by tke plaintiff to the defendant. It appears that tke logs were in a slough of Rib river, at tke time of the alleged sale, and there was not then sufficient water in the river to float them out. The defendant owned and operated a saw mill and boom on Rib river, below tke slough in which tke logs were.
    The complaint alleges,, and the testimony of the plaint) ft tends to prove, that the sale was upon the sole condition that the defendant should be able to get the logs out of the slough. It is also alleged in the complaint, and was proved on the trial, that the defendant did get the logs out of the slough and into his boom. It also appears that very soon thereafter, the boom was carried away by a freshet, and the logs, or most of them, were lost.
    The answer contains a general denial, and also a counterclaim for work done by the defendant for the plaintiff in getting the logs out of the slough and into the boom.
    
      The testimony of the defendant tends to show that he did not purchase 1he logs, but was employed by the plaintiff to get them out of the slough and run them down to the defend.ant’s boom when the stage of water in the river would allow it to be done.
    On the trial, two letters written by plaintiff to defendant concerning the same logs were read in evidence on behalf of the defendant. The first of these bears date two or three weeks after the alleged sale. The letters are as follows:
    “ Stevens Point, April 27, 1870.
    
    “John BaessMan, Esq. — Dear Si/r: I hope, if the water raises, you will run those logs that I left after me abovd your place, down to your boom. We had awful hard rain here, and I hope that Rib is up so you can run them. Now, if so, do it at the first time the water raises, and save them in your boom for me, and let me know when you do so.
    “ I left your letter for the party you told me to, in the post office. When you write to me, direct to
    “ W. J. CliefoRD, Stevens Point, Wis.”
    “ Stevens Point, Wis., May 25, 1870.
    
    
      “ John Baesshan, Esq. — Dear Sir: Your letter of the 25th inst. is received. I am glad you got out some of the logs. It is raining here all day, and I hope, before this reaches you, you will have every log in that boom. Be sure and run every log into your boom, and let me know when they will be run. I am thankful for your kindness, and remain truly your friend,
    “W. J. Clifford.”
    The plaintiff offered testimony to explain what he meant by the language employed in the letters; but the court sustained an objection to the testimony, and ruled that parol evidence was inadmissible to explain or vary the meaning of the letters.
    The jury found for the defendant, and assessed his damages at the full amount of his counterclaim, with interest. A motion for a new trial was denied, and judgment was entered for tbe defendant pursuant to tbe verdict. Tbe plaintiff appealed from tbe judgment.
    
      Gerrit T. Thorn, for tbe appellant,
    argued that tbe letters of plaintiff, put in evidence by defendant, were not a contract, nor parts of a contract, but were read merely as evidence of admissions by tbe plaintiff unfavorable to bis claim as to tbe character of the contract previously entered into; and that they were therefore susceptible of explanation by parol evidence. Starkie on Ev., 645; Woble v. Epperly, 6 Ind., 468; M’Orea v. Purmort, 16 Wend., 473; Beay v. Biehardson, 2 Cromp., M. & E., 427; Boe v. Bay, 7 0. & P., 705; Ba/nk v. Kennedy, 17 Wall., 19. In order to be an estoppel or a part of tbe res gestee, the letters must have been written at tbe time of tbe contract, so as to characterize tbe transaction; that is, tbe braking of the contract and tbe writing of tbe letters must have constituted one transaction. TIosmeb, 0. J., in Enos v. Tuttle, 3 Oonn., 250; Bussell v. Frisbie, 19 id., 205; Garter v. Buehannon, 3 Kelley, 513; Lamm v. French, 25 Wis., 37; Boekwell v. Ins. Go., 21 id., 548.
    
      W. 0. Bilverthorn, for tbe respondent, argued,
    1. That tbe letters in question were a part of tbe agreement between tbe parties; that from them, as well as from all other communications between tbe parties relative to tbe subject matter of the controversy, tbe jury were to determine what tbe transaction really was; that they were properly admissible as a part of tbe res gestee; that tbe question was, not what secret meaning tbe writer may have had in bis own mind, but what tbe words fairly import, and what tbe defendant bad a right to understand from them; that it was for the jury to give to tbe words their ordinary and fair meaning; and that testimony ,on tbe part of tbe plaintiff to vary that meaning was inadmissible. Eastman v. Bennett, 6 Wis., 232; Boelcwell v. Ins. Go., 27 id., 372. 2. That a judgment will not be reversed for tbe rejection of evidence, without some statement in tbe bill of exceptions showing what tbe rejected evidence tended to prove. Packet Go. v. Olough,2Q Wall., 528; Beard v. Be-dolph, 29 Wis., 136.
   LyoN, J.

The only question in the ease which we find it necessary to consider is, yhether the court ruled correctly in refusing to allow the plaintiff to explain by parol testimony his letters to the defendant.

The rule of law applicable to the question is thus stated by CowEN, J., in M'Crea v. Purmort, 16 Wend., 460: “Wherever a right is vested or created, or extinguished, by contract or otherwise, and writing is employed for that purpose, parol testimony is inadmissible to alter or contradict the legal and common sense construction of the instrument; but any writing which, neither by contract, the operation of law nor otherwise, vests or passes or extinguishes any right, but is only used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic; circumstances or facts. Thus, a will, a deed or a covenant in writing, so far as they transfer or are intended to be the evidences of rights, cannot be contradicted or opposed in their legal construction by facts aUimde. But receipts and other writings which only acknowledge the existence of a simple fact, such as the payment of money for example, may be; susceptible of explanation and liable to contradiction by witnesses.”

The other cases' cited by the learned counsel for the plaintiff are to the same effect; and we think the rule is correctly stated in the above extract from the opinion in M'Crea v. Purmort.

The inquiry in this cáse is, What were the terms o|f the contract between the parties? Was it a contract of sale on condition that the logs could be got out of the slough, or merely a contract to get them out of the slough when the water would permit? The contract, whatever it wns, is not contained in the letters, for they were written some weeks after the ageement was entered into. The letters are therefore no part of the res gestee. They do not vest, pass or extinguish any right, but were introduced in evidence as tending to prove collaterally the fact that the contract was one for service only, and not for a purchase and sale of the logs. Hence, it seems clear that, under the rule above stated, the explanatory testimony should have been received.

Unexplained, the jury might have inferred from the letters that the plaintiff, when he wrote them, regarded the logs as his absolute property; for the directions which he gave therein concerning the logs, and the manner in which he speaks of them, are quite consistent with that inference. And yet, had the rejected testimony been received, he might have been able to satisfy the jury that such inference was not the correct one, and that the letters should not be taken as admissions that he had not sold the logs to the defendant, but that they were written upon the theory that when the logs reached the defendant’s boom, they would belong to the latter under the contract between the parties. And this might have been done without doing any violence to the language of the letters.

The evidence as to the terms of the contract is very conflicting, and does not seem to preponderate greatly either way; and it’may be that the unexplained letters turned the scale in favor of the defendant.

We think that it was error to repel the explanatory evidence; and because the plaintiff may have been' injured thereby, the judgment of the circuit court must be reversed, and the cause remanded for a new trial.

By the Covert. — So ordered.  