#### Agnew, Appellant, vs. Baldwin, Respondent. Same, Respondent, vs. Same, Appellant.

*May 12*

September *29, 1908.*

(1, 2, 5) *Appeal: Waiver of right: Stipulated jtidgment: Exceptions to charge: Sufficiency.*(3, 4) *Contracts: Partial reduction to writing: Parol evidence: Statute of frauds: Abrogation.*

1. Where the court below granted a new trial unless defendant would stipulate to remit a part of the damages awarded by the jury on his counterclaim and allow a judgment for plaintiff for a certain sum, and defendant filed such a stipulation, he thereby waived his right to appeal from the judgment entered in accordance therewith.

2. The plaintiff in such case, however, who did not move for judgment on defendant’s stipulation and did nothing to waive his claim to recover the entire amount for which he sued, did not lose his right to appeal.

3. The question being whether the parties made an oral agreement by which plaintiff was to convey to defendant certain lots and to fill them with earth so as to raise the surface one foot, and defendant was to pay therefor in lumber of a-certain value and1 by assumption of a mortgage on the lots, the fact that a conveyance of the land and a written contract for delivery of the lumber were afterwards executed, neither of which purported to contain the entire contract, did not preclude the admission of parrf evidence to show the other part of the agreement, relating to the filling of the lots.

*2644, The promise to fill the lots in such a case was a contract for services and not a sale of property, and when the parties put in writing those parts of the agreement which the statute of frauds required to be written the statute was satisfied and the entire contract became binding, unless the agreement to fill had been abrogated by consent of the parties before the writings were made.

5. An exception “to those portions of the charge to the jury which are as follows,” followed by portions of the charge covering separate propositions, many of which are unassailable, is an omnibus exception presenting no specific question for consideration.

Appeals from a judgment of tbe circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.

*Affirmed on 'plaintiff’s appeal; defendant’s appeal dismissed.*

Tbis is au action to recover damages for failure to deliver a part of tbe lumber agreed to be delivered by tb© terms of a written agreement executed by defendant to tbe plaintiff November 28, 1905. Tbe agreement recites tbe receipt of tbe sum of $2,200, and provides for tbe delivery of lumber of good quality tberefor at sucb times and places in tbe village of West Allis as plaintiff may direct, and at tbe lowest casb prices for which tbe same could be bought of retail dealers. It is admitted that tb© defendant delivered lumber under tbe contract amounting to $1,831.44 and refused to make further deliveries, leaving $368.56 worth undelivered.

Tbe defendant by way of answer and counterclaim alleged in substance that on or about November 23, 1905, tbe parties made an agreement, which tbe evidence shows was oral, by which plaintiff agreed to sell and convey to defendant two village lots in West Allis and to fill said lots with earth within a reasonable time so as to raise tbe surface one foot, and the defendant agreed to pay for tbe lots and the filling tbe sum of $4,200, of which sum $2,200 was to be paid in lumber and $2,000 by tbe assumption of a mortgage already existing and covering tbe premises; that in pursuance of tbis agreement tbe defendant, on tbe 28th of No*265vember, executed the lumber contract in question, and on the same day the plaintiff conveyed the premises to the defendant by deed; that the defendant paid and satisfied the mortgage in January, 1906; that thereafter he delivered lumber on the contract amounting in value to $1,831.54; that the plaintiff, though often requested, failed and refused to fill the lots as agreed; and that the reasonable value of such filling is the sum of $180, which sum he claims to recover in this action, and tendered judgment to the plaintiff for $188.46 and costs up to the time of service of the answer. The tender was not accepted by the plaintiff, and a reply was filed denying that he made any agreement to fill the lots, and alleging that the lumber contract and the conveyance ■contain the entire contract between the parties.

At the opening of the trial the defendant was allowed to amend his answer so as to allege damages upon his counterclaim in the sum of $500 instead of $180 and demand judgment in his favor for $131.54. The plaintiff proved that only $1,831.44 worth of lumber had been delivered upon the contract and that defendant had refused to make any further ■deliveries, and rested. The defendant was then allowed to testify, against objection, to the making of an oral contract between himself and plaintiff early in November, 1905, by which the plaintiff agreed to convey the property to the defendant and fill the lot one foot, and the defendant agreed to pay therefor $2,200 in lumber and assume the $2,000 mortgage. The negotiations leading up to this alleged oral contract were conducted by one Kinkel, who was the plaintiff’s agent. Kinkel was pre'sent at the time the final oral agreement was made, and also testified that plaintiff agreed to fill the lot. The defendant introduced as confirmatory of his testimony a letter sent by plaintiff to him November 24, 1905, as follows:

“Mr. Kinkel will arrange with you and assume all the responsibility of filling the lot as per our conversation this *266a. m. I write yon so that the status of the matter may be understood and that the obligation will be that of Mr. Kinkel instead of mine. Yours truly, A. D. Agotew.

“O. K. A. R. Kinkel.”

Defendant further testified that shortly after the receipt of this letter he met *Agnew*in Kinkel’s office and refused to release him from the filling contract or accept Mr. Kinkel as the responsible party, and Mr. Kinkel corroborated the defendant as to this conversation and testified that it took place a day or two after the letter wras written. The plaintiff denied making any agreement to fill the lot, and claimed that he wrote the letter because Kinkel had previously said to him that if the filling of the lot was all that stood in the way of the bargain he (Kinkel) would fill it himself, and that he (plaintiff) told *Baldwin*this when *Baldwin*spoke to him about the filling, and *Baldwin*assented to the idea, and he (plaintiff) went immediately to Kinkel’s office and talked with Kinkel, who consented to the arrangement, and he immediately wrote, the letter, and *Baldwin*never spoke to him again with reference to the matter. The testimony as to the reasonable value of the work of filling was very conflicting.

The jury returned a general verdict for the defendant for $1.56, thus allowing the counterclaim at a trifle more than the plaintiff’s claim. Plaintiff moved to set aside the verdict and for a new trial, which motion was granted unless the defendant should file a stipulation consenting to remit all but the sum of $180 from his damages and allow plaintiff a judgment of $188.46 as tendered in the original answer with costs, and, in the case of the filing of such stipulation, denying the motion. The defendant filed the stipulation specified in the order of the court, and judgment was entered in accordance therewith, from which both parties appeal.

*Gharles T. Hickox,*for the plaintiff.

Ror the defendant there was a brief by *Quarles, Spence &*
      *267
      *Quarles,*attorneys, and *J. V. Quarles, Jr.,*of counsel, and oral argument by *J. V. Quarles, Jr.*

Tbe following opinion was filed June 5, 1908:

WiNSlow, O. J.

It seems plain that by stipulating to 'the entry of tbe judgment tbe defendant waived bis right of appeal therefrom. Tbe circuit judge evidently granted a new trial in the exercise of bis discretion because be was dissatisfied with tbe damages allowed by tbe jury on the counterclaim, but granted to tbe defendant the privilege of averting a new trial by reducing bis damages to a sum which tbe court deemed reasonable. Tbe defendant could take any one of three courses: be could appeal from tbe order if be deemed that tbe court’s discretion bad been abused, or be could submit to tbe new trial, or be could fill? bis stipulation and avoid another trial. He bad bis choice, and be chose to stipulate for tbe entry of tbe very judgment which was entered. In so doing be did not act under compulsion in any legal sense. A party cannot voluntarily stipulate that a certain judgment be entered and then appeal from it after its entry. He cannot be beard to complain of an act to which be deliberately consents. *Consensus tollit errorem.*

Tbe plaintiff, however, has done nothing to forfeit bis right of appeal. He promptly moved for a new trial, and bis motion was granted subject to defendant’s right to stipulate to reduce bis damages. He did not even move for judgment on tbe stipulation, and has done nothing to waive bis claim to recover tbe entire amount of tbe balance due on tbe lumber contract without reduction. His appeal must therefore be considered. His first claim is that the evidence of the parol contract to fill tbe lots was inadmissible because thé entire contract was reduced to writing and is contained in tbe deed of tbe lots and tbe lumber contract, hence that it cannot be varied or enlarged by parol. The- difficulty with this contention is that neither tbe deed nor tbe contract pur*268ports to contain tbe entire contract. The deed is simply a muniment of title and its recital of consideration is always subject to investigation. The lumber contract does not purport to state the nature of the consideration upon which it is founded. If the oral contract was as the defendant claims •and as the jury found, then it is clear that the whole contract was not reduced to writing, but only such parts of it as were necessary to convey the title of the land and define the obligation of the defendant to deliver lumber. Where parts only of an entire verbal contract are reduced to writing, parol evidence is admissible to show the remaining parts. *Mueller v.*Cook, 126 Wis. 504, 105 N. W. 1054, and cases there cited.

But it is further claimed that the entire verbal contract was void because not in writing. However, those parts which the statute requires to be in writing, namely, the conveyance of the land and the agreement to deliver the lumber, were subsequently reduced to writing. The promise to fill the lots was a contract for services and not a sale of property, and hence was not within the statute of frauds. *Meincke v. Falk,*55 Wis. 427, 13 N. W. 545; *Central L. & E. Co. v. Moore,*75 Wis. 170, 43 N. W. 1124. When the parties put those parts of the contract in writing which the statute requires to be written, manifestly the statute was satisfied and the entire contract became binding, unless indeed the agreement to fill the lots had been abrogated by the parties before the writings were made. The letter in evidence written on November 24th is claimed to amount to an abrogation of that part of the contract. There was sufficient evidence, however, from which the jury could find that the defendant at once objected to the proposal in the letter and insisted on the original contract, and, if they so found, then there was no abrogation by consent of the parties. The plaintiff is insisting upon the performance of the lumber contract, and, if the agreement to fill the lots was a part of the considera*269tion for it, be can hardly claim that he has abrogated that part of it by his own. act, which was not assented to by the defendant.

It is claimed that there were errors in the charge of the court. By his written exceptions the plaintiff first excepted “to those portions of the charge to the jury which are as follows.” Here follow more than two pages of printed matter contained in the charge, covering many separate propositions, most of which are absolutely unassailable. This is therefore an omnibus exception which presents no specific question for consideration. The plaintiff further excepted to those parts of the charge which assume that the parol agreement was valid and charge that its terms could not be modified except by assent of both parties. As previously indicated in this opinion, there was no error in the charge in these respects in a case like the present where the plaintiff is endeavoring to enforce one of the parts of the original agreement.

A third exception is based on the failure of the court to charge that the parol agreement was void because not in writing, and his further failure to instruct that the letter of November 24th, followed by the written agreement to deliver lumber, constituted a waiver on the part of the defendant of any claim of liability for refusal to fill the lots. These propositions also are disposed of in the previous discussion in this opinion.

There are no other questions which require attention.

*By the Gourt.*— The appeal of the defendant is dismissed, and upon the plaintiff’s appeal the judgment is affirmed.

A motion by the plaintiff for a rehearing was denied September 29, 1908.