Brader vs. Brader. so directly connected with a transaction between plaintiff and deceased as to be improper. Its only purpose was to show that in a transaction to which some one else had testified, such testimony being ambiguous as to what money was referred to, she had only the specific $250. It is certainly an attempt to prove by this witness that the $250 was the subject of the conversation between her and her husband overheard by the child; and the answer to the second question, if relevant at all, tended to justify an inference of its delivery to him at that time and a denial that he ever returned it to her. The objections to her competency to answer these questions should have been sustained. 3. An important ground of error assigned consists in several rulings of the trial court excluding all evidence to establish that at a certain alleged settlement the plaintiff, besides conveying land, settled and released all claim for these moneys in consideration of $2,000 then paid her by the decedent in the form of four promissory notes of $500 each, payable, respectively, to her four children by first marriage. Such testimony was excluded for the reason that at the time of the transaction the plaintiff executed and delivered a simple deed of conveyance of her farm expressing a consideration of $2,000, and the decedent executed the four promissory notes above described. The court considered these writings to purport to express the contract between the parties, and to render inadmissible evidence of any other, further, or different terms or subjects. The view adopted by the trial court has so recently received consideration and disapproval that no extended discussion is necessary. We have in two very late cases reiterated the wellestablished rule that neither a simple deed of conveyance nor a promissory note purports to express the whole contract between the parties. Nauman v. Ullman, 102 Wis. 92; Cuddy v. Foreman, 107 Wis. 519. The deed but purports to convey property in execution, partially or wholly, Brader vs. Brader. of some agreement; and the promissory note merely serves as convenient evidence of a promise to pay money. Usually such instruments grow out of agreements having other elements than the mere conveyance or than the mere future payment of money, and therefore no presumption arises that the parties have attempted to embody their whole contract in either instrument. Counsel invokes the rule that, when writings are made, no elements of contract may be shown by parol, unless the writing itself discloses that it is incomplete and not intended to cover the whole agreement. That rule in no wise supports the ruling now under consideration, for by overwhelming consensus of authority it is established that a mere deed of conveyance or a simple promissory note does disclose on its face and by its very character that it is not an attempt to set forth the whole contract made. 2 Jones, Ev. § 446. Of course, the additional elements of contract which may thus be proved must be consistent with, and not in contradiction of, the effective part of the writing. For example, evidence would not be admissible of an extraneous agreement that the deed should not convey the property described, or that the money should not be payable at the time specified in a promissory note. Gillmann v. Henry, 53 Wis. 465. We do not understand that the evidence offered was obnoxious to this rule, however. The trial court seems to have been misled by Hei v. Heller, 53 Wis. 415. That case is, however, wholly distinguished from Cuddy v. Foreman and its line of authorities; for the document involved in Hei v. Heller was not a mere deed of conveyance, but, while containing effective words of conveyance, also proceeded to set forth terms of bilateral agreement on several subjects, and on its face evinced an attempt and intent to embody therein the contract made by the parties. The excluded evidence, considered generically and not in detail, should have been admitted, and its exclusion was error, obviously to the prejudice of the defense. Brader vs. Brader. By reason of the errors already indicated, the judgment must be reversed, and it does not seem necessary to discuss the detail of several minor assignments of error, hardly likely to present themselves in the same way upon another trial. By the Court.-Judgment reversed, and cause remanded for a new trial. CASSODAY, C. J. I concur in the reversal of the judgment in this case for the improper admission of evidence; but in my opinion the cause of action is barred by the statutes of limitation, cited in the opinion filed. To my mind the cases of Second Nat. Bank v. Merrill, 81 Wis. 155, 156, and Fawcett v. Fawcett, 85 Wis. 332, are clearly distinguishable, for reasons stated by counsel for the appellant; but, even if this were not so, still I should feel bound to give effect to the statutes which are conceded to be so clear and unambiguous as to preclude construction. Courts are instituted, not for the purpose of making laws, but for the purpose of declaring what the law is; and an erroneous declaration as to what the law is does not, in my judgment, change the law, although it is binding upon the parties in the particular case. Such erroneous declaration of the law simply puts the court making it out of harmony with the law; and this is particularly so as to statutory law, when the statute is clear and unambiguous, leaving no room for construction. The legislature is expected to amend and correct statutes; but it can hardly be expected to review and correct erroneous statements of the law in judicial opinions, especially as such statements may at times be in direct conflict. To give force and effect to all such erroneous statements is in my judgment to bring the law into endless confusion. I am further constrained to say that in my opinion parol evidence was properly excluded as to whether the property in question was included in the settlement of December 4, VOL 110-28 Electric Appliance Co. vs. United States Fidelity & Guaranty Co. 1872. The deed signed by the one party, reciting a consideration of $2,000, and the four notes, of $500 each, signed by the other party, amounting to $2,000, should in my judg ment be considered as one paper in law, signed by both parties, and hence as constituting the written agreement between the parties. Gillmann v. Henry, 53 Wis. 465, 468; Herbst v. Lowe, 65 Wis. 316. This being so, it necessarily excluded all contemporaneous agreements between the same parties in relation to the same subject matter or any part of it. Such written agreement is conclusively presumed to include the whole agreement. 1 Greenl. Ev. § 275; Caldwell v. Perkins, 93 Wis. 89. Such contemporaneous agreements are in my judgment excluded by the rule stated, although they may not contradict the written agreement. Both parties moved for a rehearing. For the appellant there was a brief signed by R. M. Bashford, and for the respondent there were briefs by F. J. & C. F. Lamb. The motions were denied May 21, 1901. THE ELECTRIC APPLIANCE COMPANY, Respondent, vs. THE UNITED STATES FIDELITY & GUARANTY COMPANY, imp., Appellant. March 22 - May 21, 1901. Suretyship and guaranty: Municipal corporations: Liability for laborers' and materialmen's claims: Waiver. 1. Where a contract with a city for the erection of a lighting plant expressly stipulated that the bond to be given by the contractor for the faithful performance thereof should also be conditioned for the payment by the contractor of all claims for material and labor, the acceptance of a bond without such condition embodied therein is a waiver thereof. Electric Appliance Co. vs. United States Fidelity & Guaranty Co. 2. Statutes giving a mechanic's lien do not extend to, and cannot be enforced against, the buildings and real estate of municipal corporations held for public use. 3. In such case where the contract provides that the plant shall be completed and ready for acceptance free and clear of all claims or liens for labor performed or material furnished, a materialman cannot maintain an action against a surety on a bond given by the contractor to the city for the faithful performance of his contract, the engagement of the surety being with the city and not with third persons. 4. To entitle a person to recover on an agreement between third persons there must not only be an intent to secure some benefit to him, but there must be a promise, legally enforceable. 5. Where a bond to secure a contract with a city for the erection and installation of a lighting plant was conditional for the faithful performance of the contract, and the contract provided that, before final payment by the city, the contractor should present receipts in full for all labor performed and materials furnished in the construction and installation of the plant, no action can be maintained on such bond where full payment was made in violation of such express stipulation of the contract. APPEAL from an order of the circuit court for Dodge County: JAMES J. DICK, Circuit Judge. Reversed. The defendant The United States Fidelity & Guaranty Company has appealed from an order overruling a demurrer to the plaintiff's complaint. The complaint was challenged on the ground that there was a defect of parties defendant, and that it did not state facts sufficient to constitute a cause of action. It appears that the city of Waupun was desirous of erecting a municipal lighting plant. Bids were invited, and on September 2, 1899, a contract was entered into between the city and the defendants Rockwell & Snyder to erect the same, and have it fully completed and ready for delivery on or before November 15th of that year. The contract stipulated, among other things, that the plant should be delivered "free and clear of all claims or liens for labor performed or materials furnished or otherwise," and that, before final payment should be made therefor or be deemed to be due on |