#### Irish vs. Dean.

Contracts : Evidence. *(1, 2) Rights of parties under contract for supplies, silent as to its duration. Parol evidence inadmissible to limit the time. Reversal of judgment. (3) No reversal for error by which appellant was not injured.*

By contrae!; under seal, A. covenanted "with B. to sell and deliver to the latter, “milk and cream, of good quality and in sufficient quantity for his use in the hotel kept by him and known as the ‘Park Hotel; ’ said milk and cream to be daily furnished and delivered” at specified prices; and B. covenanted to purchase of A., at said prices, “all the milk and cream that he may use in the hotel kept by him, known as the *‘*Park Hotel, ’ and to pay for the same at the. end of each month, in full. ’ ’ B. had a lease of said hotel for five years from the date of said contract. A little more than a year from that date, he refused to receive any more milk or cream from A., and thenceforth purchased those articles from other persons for use in bis said hotel. Upon A.’s claim for damages for breach of such contract, *Held:*

1. That the contract being silent as to its duration, either party might terminate it at pleasure upon reasonable notice; and parol evidence that the contract was for a specific time, was inadmissible.

2. That, as no question of notice was made on the trial, the court should have charged that when B. terminated the contract, he had a legal light to do so.

3. That, although B.’s evidence of a contemporaneous oral agreement that the contract should terminate in one year was improperly admitted, still, as A. was not injured thereby, a verdict against him will not be disturbed.

APPEAL from tbe Circuit Court for *Dane*County.

Action upon an account which, the defendant admitted was correct. The controversy arises upon a counterclaim in the answer, in which it is alleged that on the 1st of August, 1871, the defendant and one .Harvey T. Jewett were partners in the farm and dairy business in Dane county, under the name and style of H. T. Jewett & Co., and that before that time the plaintiff had leased the “Part Hotel” in Madison, for five years from August 15th, 1871, and, when the contract herein*563after mentioned was made, was engaged in making preparations for opening such kotel for the accommodation of the public. Tbe counterclaim tben proceeds as follows :

“ And for tbe purpose of making provisions to supply himself, in tbe conduct and management of said hotel business, witb milk and cream during tbe time-for wbicb be bad so leased tbe said building and appurtenances, and witb tbe mutual agreement and understanding tbat tbe contract hereinafter set forth should be for tbe period of time for wbicb be bad so leased tbe same, unless tbe said plaintiff should himself sooner withdraw from the business of conducting said hotel, tbe said plaintiff on tbe one part, and tbe said Jewett and this defendant on tbe other part, as such partners, and by their said firm name, made and mutually executed, under their bands and seals, and delivered, a written agreement, of wbicb tbe following is a copy, to wit:

“ *‘*This agreement, made this first day of August, 1871, by and between H. T. Jewett & Co., of Dane county, "Wisconsin, party of tbe first part, and *Mark H. Irish,*of tbe city of Madison, Wisconsin, party of tbe second part, witnesseth:

*“ ‘*Tbat tbe said party of tbe first part, for and in consideration of tbe (covenants and agreements of tbe party of tbe second part, to be hereinafter specified, doth hereby promise and agree to sell and deliver to said party of tbe second part, milk and cream of good quality and in sufficient quantity for bis use in tbe hotel kept by him, and known as tbe Park Hotel; said milk and cream to be daily furnished and delivered at tbe following prices, viz: milk at six (6) cents per quart, and cream at twenty (20) cents per quart.

“ ‘ And tbe said *Mark S.*Irish, party of tbe second part, for and in consideration of, tbe covenants and agreements bereiñ contained to be kept and performed by tbe said party of tbe first part, hereby covenants and agrees to purchase of said IT. T. Jewett & Co. all tbe milk and cream, at tbe prices hereinbefore named, tbat be may use in tbe hotel kept by him, *564known as the Park Hotel, and to pay fox- the same at the end of each month, in full.

. “ £ Witness our hands and seals the day and year first above written. “ ‘ H. T. Jewett & Co. *[Seall\*

‘“M. H. Ieish. *lSeal.y”*

It is then alleged that Jewett & Co. purchased additional stock and incurred other large outlays in adding to their facilities for performing such contract, and did perform it fully from August 23d, *1871*(when the hotel was first opened for guests), until September 2d, 1872, on which last mentioned day the plaintiff refused to purchase or receive any more milk or cream from Jewett & Co., although they were ready and willing and offered to furnish the same, but the plaintiff procured milk and cream elsewhere for use in his hotel. An assignment of the contract, and all rights under it, to the defendant, before this action was commenced, is duly averred, and the counterclaim is for damages resulting from the alleged breach of the contract by the plaintiff. The quantity of milk and cream furnished under the contract is stated as a basis for ascertaining such damages.

The plaintiff intei’posed a reply to such counterclaim, in which, after denying that the conti’act was to i’emain in force more than one yeai’, he alleged certain l’easons, not material to the questions considered by the court, why he refused to receive milk and cream under the contract after the expiration of the year.

On the trial, parol evidence was received on behalf of the defendant, showing the leasing of the Park Hotel by the plaintiff, as alleged in the counterclaim, and that when the contract in controvei’sy was made, the defendant knew the terms of the lease. Parol evidence was also received, against the objection of the defendant, tending to show that the parties agreed that the contract should terminate in one year. After such objection was overruled, the defendant gave testimony tending to prove that the contract was to continue while *565tbe plaintiff should keep tbe hotel. All the foregoing evidence was submitted to the jury, who found specially that the contract was for one year. The defendant was, therefore, defeated on his counterclaim, and the plaintiff had verdict and judgment for the amount admitted to be due on his account. From this judgment the defendant appealed.

*Won. F. Vilas,*for appellant,

contended, 1. That the court should have construed the written contract, without reference to any earlier or contemporaneous agreement not incorporated therein. 2 Parsons on Con. (5th ed.), part II, ch. 1, sec. 10, p. 548. 2. That this contract ought not to be construed as an idle document, silent as to time, and -terminable at the caprice of either party. A contract is to be so construed *11 rub res magis valeat qtia/m, pereatV Brown v. Batchelor,*1 H. & N., 255; *Mare v. Charles,*5 E. & B., 978. Eor the same reason, all parts of the contract will be construed in such a way as to give force and validity to all of them, and to all the language used, where that is possible.” ■ 2 Parsons on Con., part II, ch. 1, sec. 3, p. 505; *Goix v. Bow,*1Johns. Oas., 343. Again, the presumption in respect to the us,e of words is in favor of the comprehensive over the restrictive, the general over the particular sense. 2 Parsons on Con., p. 501. The situation of the parties at the time with respect to the'subject of the contract, the surrounding circumstances, and the manifest object and purposes to be subserved by it, a§ derived therefrom, are also confessedly admissible to aid in arriving at the sense in which the words of the contract were employed. Beading this contract in the light of the fact tiiát the plaintiff, wlien he entered into it, was engaged in making arrangements to supply the “ Park Hotel,” then recently leased by him for five years, counsel contended that it could only be construed to mean, that the plaintiff was to receive from the other party to the contract all the milk and cream that he might use in such hotel; and that the obligation of the contract would therefore continue so long, and" only so long, as plaintiff *566should desire such supplies, as the landlord of the said hotel; that proof of the fact that he was lessee for a limited time, should he resorted to chiefly for the purpose of limiting the obligation to that time as its utmost; but that the language of the contract would terminate its obligation, should the plaintiff sooner assign or surrender the lease or discontinue business.

*B. TJ. Pimruey,*for respondent:

1. "Where the writing is *silent*on a subject upon which the parties have actually agreed as part of their contract, parol evidence is admissible to show what the agreement was in that respect; the agreement in such case being in part a written, and in part an oral one. 2 Parsons on Con., 553; *Jeffery v. Walton,*1 Starlde, 267; *Ballston Spa Bank v. Marine Bernik,*16 Wis., 120, 136. When a contract does not depend solely upon written documents, the question as to what such contract was, is for the jury. 1 Ghitty on Con., 102; *Moore v. Garwood,*4 Exch., 681, 690; *Bdwards v. Goldsmith,*16 Pa. St., 43; *Bomeisler v. Dobson,*5 Whart., 398. 2. The writing here is entirely silent as to the time during which it should be in force. The engagement of *Irish*to “ pay for all the milk and cream that he may use ” in the hotel, refers to the engagement of the other party to sell and deliver, and does not bind him to receive and pay except so far as they have bound themselves to deliver (1 Ghitty on Con., 122,117, and cases cited in note); and their engagement extended only to daily delivery, good quality and sufficient quantity; the object of the parties being to covenant for a *full supply and good quality so long as it was delivered,*and that neither party should have to look elsewhere, the one to get an adequate supply, or the other to market that quantity. If the contract contains any provision as to its duration, it is that it shall continue as long as the plaintiff shall keep the hotel, whether as lessee or owner. If such a provision exists in the contract, parol evidence, to show that it was to con*567tinue only as long as be should keep as lessee, or, at most, no more than five years, conld not be received to affect tbe contract. It could only be admitted upon tbe theory that tbe contract is, as we contend, entirely silent as to tbe period of its duration. 3. Tbe written contract did not contain any reference to tbe lease from tbe Park Hotel company to tbe plaintiff. Other contemporaneous, agreements between tbe same parties, in relation to tbe same subject matter, in whole or in part, might be referred to as part of tbe agreement, or to construe it. So, reference might be bad to writings not contemporaneous, and not between tbe same parties, *if the agreement itself made sueh referenee ;*.otherwise not. *Posey v.*Bice, 29 Wis., 93; *Hutchinson v. B’y Oo.,*37 id., 582,608.

LyoN, J.

We think tbe circuit coui’i erred in admitting testimony *aliunde*tbe written contract, to show tbe time tbe parties agreed tbe contract should remain in force. That must be ascertained and determined by tbe court from tbe contract itself, without resort to extraneous evidence; and tbe jury bad no concern with tbe question. This is not tbe case of latent ambiguity in a written contract, which may be explained by parol;' neither is it a case in which tbe parties have reduced to writing a-part of their contract only, leaving tbe residue thereof in parol. On tbe contrary, in this case tbe parties have reduced tbe whole of their contract to writing, and tbe instrument seems free from ambiguity. There is no more difficulty in determining, from tbe instrument itself, bow long tbe contract might continue, and when and bow it might be terminated, than there is in determining when a promissory note becomes due which specifies no day of payment, or bow a written contract to render and pay for daily or weekly services, but which is silent as to duration, may be terminated. In tbe one case it would be held that tbe note was due immediately, and parol testimony would not be received to show tbe contrary. *Thompson v.*Ketcham, 8 Johns., *568190. In tbe other case, it would, doubtless, be held, that the contract is terminable by either party at pleasure, and parol proof would not be received of an agreement that the services should be continued to a specific time. ■ The most that could be required of the party seeking to terminate the contract, would be reasonable notice thereof to the other party.

The true rule, we think, is this: In a contract for personal services, or for the sale of personal property to be delivered from time to time, if the contract is silent as to its duration, either party may terminate it at pleasure by giving reasonable notice to the other party of his intention to terminate it. The present case comes within this rule, and the circuit court should have excluded the proofs *alAnmAe*the written contract, which tended to show that the contract, although silent as to duration, was yet for a specific time. Such proofs changed the terms of the contract just as certainly as though it had been expressly written therein that either party to it might terminate it at his option. Inasmuch as no question of reasonable notice was made on the trial, the circuit court should have held that when the plaintiff terminated the contract, he had a legal right to do so, and could not be required to respond in damages therefor.

It follows that the defendant was not injured by any errors committed on the trial, and hence, that the judgment of the circuit court must be affirmed.

*By the Gov/rt.*—Judgment affirmed.