#### Tietz, Appellant, vs. Tietz, Respondent.

*March 8*— April *3, 1895.*

*Written contract: Recovery on implied assumpsit: Cross-examination-of plaintiff: Contract made part of his case: Evidence of prior negotiations.*

1. No action upon an implied contract for board, lodging, etc., furnished defendant’s minor son could be maintained where a written agreement between the parties covering the entire subject matter remained in force and unperformed.

2. In such an action the existence of the written agreement might be-shown by cross-examination of the plaintiff, and when he had identified it it became a part of his case and a nonsuit was properly granted.

3. Prior negotiations or communications on the subject of a written contract are merged in it, so that evidence of them is incompetent.

Appeal from a judgment of the circuit court for Wau-paca county: Chablbs M. Webb, Circuit Judge.

*Affirmed.*

The plaintiff brought an action against the defendant to-recover what it was reasonably worth for boarding, lodging,, and medical attendance of the defendant’s minor son for four years and ten months, alleging that the same was reasonably worth $8 a month,— in all, $464. The defendant alleged that the plaintiff took defendant’s minor son to live with him under a special contract, under seal, between the parties, made May 17,1887, and that such contract remained open and unperformed.

Upon cross-examination of the plaintiff, he testified that there was such an agreement between the parties, and identified it, and said that it was the only written contract on the subject, and that there was no subsequent oral agreement between them. The written agreement was then offered in evidence by the defendant, and received. Evidence was offered by the plaintiff as to what took place between the parties on the subject before the agreement was exe*67cuted, but was excluded. The written agreement was quite elaborate, and under it, among other things, the plaintiff was to provide for and educate defendant’s said son, and to have his care and custody until he should arrive at the age of twenty-one years, when the plaintiff was to pay him $200 for his services; but, if the plaintiff’s wife should die before he arrived at the age of fifteen years, then said minor -was to be returned to the defendant, his father, without any cost, charge, or expense to him for care, custody, and education, and the plaintiff was, in such event, to make certain payments to the defendant. Differences arose between the parties, in consequence of which the defendant took his minor son into his own charge and custody, about March 14, 1892,. and before he had attained the age of twenty-one years.

At the close of plaintiff’s case the court gave judgment, of nonsuit against him, from which he appealed.

The cause was submitted for the appeUant on the brief off *Goldberg <&*Hoxie, and for the respondent on that of *Gerrit. T. Thorn.*

Pinney, J.

1. It clearly appears from the plaintiff’s case-that there was an existing written contract between the parties, covering the entire subject matter in question between them, and that its provisions had not been performed. The plaintiff was to have the services of the defendant’s minor son until he arrived at the age of twenty-one years,, for his care, boarding, lodging, etc., upon the payment only of the small money consideration stated. The plaintiff could not maintain an action against the defendant as upon an implied assumpsit for the board, lodging, and medical attendance sued for, but was confined to what remedy he might-have upon the special written contract, which remained unperformed. It is very well settled that, when a -written or express agreement between the parties remains in force and unperformed, a resort to an implied contract cannot be-*68allowed. *Baxter v. Payne,*1 Pin. 501; *Bulger v. Woods, 3*Pin. 460; *King v. Kerr,*3 Pin. 464; *Maynard v. Tidball,*2 Wis. 34; *Bradley v. Levy,*5 Wis. 400.

2. The plaintiff’s objection that it was error to receive the written agreement in evidence before the plaintiff had rested Ms case and the defendant had entered upon his defense is not tenable.' It was competent for the defendant to show by cross-examination of the plaintiff that there was a written contract between the parties in respect to the subject matter of his demand, and, when the plaintiff had identified the contract, it properly became a part of his cross-examination and part of his case. The objection to the exclusion of evidence to show what took place between the parties on the subject of the contract prior to its execution was not well taken. All prior negotiations or communications between the parties were merged in the written contract.

The plaintiff was rightly nonsuited.

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