Houk v. Gilmore

COSHOW, J. The first error submitted in defendant’s brief is the ruling of the court that the written contract was the only evidence of the agreement entered into between the parties. It is the contention of defendant that, inasmuch as the copy of the contract returned to defendant was not signed by the plaintiff, there was no delivery of the contract and that the writing is not evidence of the agreement between the parties. We cannot agree with this contention. It was admitted that the copy of the contract possessed by the plaintiff was the agreement as prepared by defendant through her attorney. Defendant admitted that she signed that contract. There was no change made in it by the plaintiff. It was signed by her just as it came from the defendant. The parties operated under the agreement during the first four months. Plaintiff returned the copy of the contract she had not signed to the defendant who made no objection to the incompleteness of that copy. Under these circumstances the writing was the evidence of the agreement entered into between the parties. It could not be contradicted or varied by parol testimony. The presumption of law *502 is that the entire agreement between the parties was embodied in that writing: Or. L., § 713. It was not necessary for any formal delivery of the contract: Kinney v. Schlussel, 116 Or. 376, 381, 394 (239 Pac. 818). Bnt we think a delivery was shown. The fact that the parties operated under the contract in accordance with its terms for four months is evidence of a delivery. Defendant complains because the court instructed the jury that: “ * * a receipt is not absolute verity of payment; but is only prima facie and is subject to explanation by other evidence, and can be considered by the jury together with all the other evidence in this case, as to whether or not the plaintiff was paid in full at the time those checks were given.” This instruction was given because of evidence to the effect that a number of the checks which plaintiff received in payment of her services embodied the words “in full” in the body of the check. We think the instruction was properly given: Marks v. Twohy Bros. Co., 98 Or. 514, 528 (194 Pac. 675). Defendant complains because plaintiff’s attorney as a witness in behalf of plaintiff entered into details regarding a conversation he had with an attorney for the defendant. This conversation pertained to the increase over the preceding year of the business of defendant during the year plaintiff was employed. Defendant cannot complain here because of that error for two reasons. First, the court struck out all the evidence and instructed the jury to disregard it; second thereafter counsel in open court stipulated that the increase referred to amounted to $6,100; consequently the error complained of was cured. In the same connection defendant complains because she was required to produce her account-books *503 on motion of plaintiff although previous demand had not been made. It was in order for the court to direct the defendant to produce her books notwithstanding due notice had not been given. The ruling was in the sound discretion of the court. Defendant cannot complain of it because the books were not produced. Instead thereof her counsel stipulated in open court the fact intended to be established by the books. Another complaint advanced in defendant’s brief is that she should have been permitted to have gone into the negotiations leading up to the making of the agreement and reducing the same to writing. This complaint is not well founded. The agreement having been reduced to writing and executed by the parties is to be considered as containing all the terms of the agreement: Or. L., § 713. Defendant also complains because the court instructed the jury that plaintiff contended that she was to be paid $100, the amount she remitted from her salary during the months of January and February, 1925. The plaintiff in her pleadings alleged that she remitted $100 of her salary during those two months. Her testimony supported the allegation. The court erroneously instructed the jury that plaintiff claimed that she was entitled to the $100 so remitted, at the end of the term of her employment. This error on the part of the court was not prejudicial to the defendant. The plaintiff did complain of it and saved an exception. The plaintiff recovered judgment in accordance with her complaint, which did not include the $100 mentioned above. Finding no material error the judgment of the Circuit Court is affirmed. Akkxbmed.