#### Hammond, Respondent, vs. Capital City Mutual Fire Insurance Company, Appellant.

*October 9*

October *29, 1912.*

*Fire insurance: Latent ambiguity in policy: Parol evidence of negotiations: Partnership and individual property.*

1. Where, upon applying a writing to the subject matter to which it relates, a latent ambiguity appears therein, parol testimony of the facts and, circumstances surrounding its execution, including conversations and negotiations between the parties, may be received to solve the ambiguity.

2. A policy insured “Hammond Bros.” against loss or damage by fire to “household goods” — including specifically, among other things, household furniture, family wearing apparel, family stores and supplies, watches and jewelry in use, — located in a building occupied by assured as a hotel and saloon. It appearing that two brothers carried on a partnership business under the firm name of Hammond Bros, and had partnership property in such building, and that each had individual property therein, there was a latent ambiguity in the policy as to whose property was insured under the term “Hammond Bros.,” and parol evidence was properly admitted to show that, in a conversation between one of the brothers and the agent of the insurer prior to the delivery of the policy, it was agreed and understood that the insurance should cover the individual property of each partner as well as the partnership property.

' Appeal from a judgment of the circuit court for Marquette county: Oiiestee A. Eowlee, Circuit Judge.

*Affirmed.*

*63Action upon a fire insurance policy. It appears that the defendant company sometime in October or about the 1st of November, 1909, took over the business of another insurance company known as the Poynette Mutual Fire Insurance Company and issued new policies to its members. About November 1, 1909, it delivered to plaintiff a Wisconsin standard form policy reciting that defendant “in consideration of the stipulations herein named and $4.38 premium does insure Hammond Bros., of Westfield, Wisconsin, from the 1st day of November, 1909, at noon, to the 20th day of July, 1911, at noon, against all direct loss or damage by fire and lightning, except as hereinafter provided, to an amount not exceeding $'700, to'the following described property while located and contained as described herein and not elsewhere, to wit, $100 on household goods as per form attached, all while contained in the two-story composition and gravel, cement block building situated on lot 1, block 'O’ in the village of Westfield, Wisconsin, occupied by assured as a hotel and saloon.” The rider attached was as follows:

“On household furniture and utensils, useful and ornamental, including beds, bedding, linen, family wearing apparel and materials for same, plate, plated ware, printed books and music, musical instruments (excepting pianos and organs), mirrors, portraits, pictures, paintings, engravings and their frames (no picture, painting nor engraving to be valued at more than cost), watches and jewelry in use, fishing tackle, firearms, sewing machines, trunks, umbrellas, fuel, family stores and supplies, all while contained in the above described building.”

This policy was issued upon an application presented to the Poynette Mutual Eire Insurance Company in which the words printed thereon, to wit, “household goods, piano or organ,” were stricken out by crosses made with a pen, and the words “hotel fum. & fix.” inserted by pen in place thereof. In the rider attached to the Poynette policy describing the property. the word “household” was stricken out by a pen line drawn *64through the same and tbe word “hotel” written in place thereof, so that it read: “$700 on hotel furniture and utensils,” etc.

The complaint alleged that the defendant, by virtue of the terms and conditions of the policy described, insured the property of the plaintiff, which was destroyed, with other property belonging to the plaintiff and his co-insured, Zera Hammond, in addition to the joint property of the said plaintiff and the said Zera Hammond, so that the policy covered the individual property of the plaintiff, the individual property of his brother, Zera Hammond, and the partnership property of Hammond Bros. It further alleged that the defendant, previous to the issuance of the policy, was informed of the separate ownership of the property contained in the building described, and that it was specifically agreed between defendant and plaintiff and Hammond Bros, and Zera Hammond that the policy of insurance should cover the individual property of each of the partners as well as the partnership property, and that it was further distinctly understood and agreed by and between the plaintiff herein and said Zera Hammond and said copartnership of Hammond Bros, that all of said property in said hotel building so described, referred to in said policy and covered, thereby, should be described and insured as the property of Hammond Bros.

The answer denied any liability to the plaintiff upon any cause of action and alleged that the defendant, on or about ■November 1, 1909, issued and delivered its policy of insurance to Hammond Bros., wherein and whereby it did insure the property of Hammond Bros, only, and it specifically denied that said policy by its terms covered any individual property belonging to the plaintiff or his copartner. It further ■alleged that the policy was executed and received by said Hammond Bros, on or about the day of its issue, and retained by said Hammond Bros, without any objection being raised by them or either of the individuals that composed the firm of Hammond Bros.

*65Tbe jury by a special verdict found (1) tbat Johnson (tbe agent of defendant) and *Philo 'Hammond*(tbe plaintiff) bad a conversation prior to tbe delivery of tbe policy in suit relative to insurance with tbe defendant company; (2) tbat it was agreed at said time tbat a policy would be taken in tbe defendant company; (3) tbat Johnson and *Philo Hammond*both intended and understood at said time tbat tbe partnership property of Hammond Bros, and tbe individual property of each partner situated in tbe building was all to be insured by said policy; (4) tbat Johnson knew at said time tbat part of the property in tbe building intended to be insured belonged to tbe partnership of Hammond Bros, and part to tbe partners individually; and (5) that tbe actual value of tbe property destroyed by fire was $400.

On such verdict tbe court entered judgment in favor of tbe plaintiff, from which tbe defendant appealed.

For tbe appellant there was a brief by *Richmond, J ademan &■ Swanson,*and oral argument by *S. T. Sivansen.*

For tbe respondent there was a brief by *D. W. McNamara*and *Anna B. Hull,*and oral argument by *Anna B. Hull.*

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 in*66dividual 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). *67But 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 *68or 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.