(on motion for rehearing). 1. The motion for rehearing presents a question not argued when the case was before the court for decision, that is, whether, in order to admit .parol evidence under the rule stated in the opinion in this case, it is essential that it appear from the writing itself that the whole agreement of the parties was not incorporated therein.
It is not essential to a decision of this case to determine whether the earlier cases which announced the rule upon which the appellant relies have been modified by later de*268cisions, because it does appear from the writing itself that the whole agreement of the parties was not incorporated therein. The writing contains no provision as to the personal property. Yet it appears without conflict that the agreement must have covered the personal property as well as the real estate, because the possession and control of the personal property was transferred to the plaintiff at the same time that the possession of the farm was given to him.
The proof received did not vary or contradict the terms of the written contract. It supplied* the proof to establish a portion of the contract which the parties had left in parol.
2. The case is not controlled by Borchert v. Skidmore L. Co. 168 Wis. 523, 525, 171 N. W. 70. In that case an attempt was made to show that the consideration which was named in the contract was not the true consideration agreed upon, but that in addition thereto the purchaser had assumed and agreed to pay certain mortgages upon the land in question. Here no- attempt is made to claim that there was any other or different consideration than that named in the contract. The proof offered was received for the purpose of showing that the consideration named in the contract covered the personal property as well as the land. This was admissible under the rule adopted in Lathrop v. Humble, 120 Wis. 331, 333, 97 N. W. 905. It is the legal effect of an instrument, not its name, which controls when the question is raised as to whether the consideration named is one of the contractual elements of the contract.
By the Court. — Motion denied, with $25 costs.