Massillon Sign & Poster Co. v. Buffalo Lick Springs Co.

The opinion of the Court was delivered by Mr. Chief Justice Pope. The plaintiff, as a corporation under the laws of the State of Ohio, sued the defendant, as a corporation under the laws of the State of South Carolina, for the sum of $945.59. The defendant in its answer admitted that it owed the plaintiff $426.43, but denied that the balance of the account was due and owing. The case came on for trial'before Judge John S. Wilson and a jury; the jury rendered a verdict in favor of the plaintiff for the sum of $436.60. The Circuit Judge required that said verdict should be increased by the sum of $25.50, which makes the total amount $462.10, to which the defendant assented; thereupon the plaintiff appealed upon the four following grounds, *116 and the subdivisions thereunder, which we will now consider in their order. 1. “Error of law by his Honor, the presiding Judge, in permitting the witness Alex. D. Hudson to testify, on cross-examination, as follows: 1 (a) “ ‘Q. And the signs ordered by them were to be of that material and style? Mr. Gaston: I object to anything that was finally bought. It is stated in the order. The order speaks for itself. In other words, the order is the agreement. Q. Now, with reference to these fibre signs, you had sample fibre sign with you? A. Yes, sir. Q. Now, was there not an agreement as to what was to be put on these fibre signs that these people ordered ? A. Yes, sir.’ Objection noted. “And in admitting the further testimony of this witness, that the fibre signs were to be folded edges. (b) “In ruling that the witness Alex. D. Hudson be permitted to testify, on cross-examination, the same way in regard to the blankets or horse covers. “Assignment of error. These orders were in writing and the best evidence of the agreement between the parties, and no testimony, varying, contradicting, adding to, or taking from the terms of the orders is admissible.” It was error in the Circuit Judge to allow the witness Hudson to testify, on cross-examination, at variance with the written order accepted by him requiring certain material and style; and the same way, on his cross-examination, to testify in regard to the blankets or horse covers. It is certainly law that when an agreement is reduced to writing, signed by the parties, that is what the parties have agreed to, anid it cannot be altered by an agreement at variance with said order. This exception is sustained. 2. “Error of law in permitting the witness L. D. Childs to testify as follows: (a) “As to conversation between himself and Mr. Hudson, to the effefct that he had no samples of the bill posters. *117 but did have samples of the fibre signs, and in permitting the witness to testify as to the description of the said sample. (b) “In permitting the said witness to testify, in answer to this question, ‘Well, Mr. Childs, just state what were Mr. Reading’s duties and powers, and whether he worked subject to you;’ and in answer to this question, ‘Did you authorize him to do that or not?’ ‘Were you present when he wrote those letters about sending a check to these people?’ And error on the part of the Court in refusing to strike out this testimony. The error being that this witness first testified, on direct examination, that Mr. Reading had the position of general manager. The letters in evidence were signed by him, and any testimony by this witness as to his instructions to Reading contradicted the written evidence, and the admission of this testimony was very prejudicial to the plaintiff before the jury, for the reason that it was further testified that the said Reading had absconded for forging Mr. Childs’ name to checks, thereby creating the impression upon the jury that the defendant was an innocent sufferer on account of the letters written by Mr. Reading to the plaintiff in this suit, and allowing Mr. Childs to repudiate these letters, which were written by the authorized general manager of the defendant company, in the scope of his employment. (d) “In permitting the witness Childs to testify that the fibre signs did not come up to sample, for the reason that the samples were not in evidence, and there had been no notice to produce the same.” It was certainly error in law to permit the witness L. D Childs to testify as to a conversation between himself and Mr. Hudson, to the effect that Mr. Hudson had no sample of the bill posters, and in permitting this witness to testify as to the description of said sample; again, in permitting the witness to testify that the signs as bought were folded edges, there being nothing in the contract to call for folded edge signs; and, again, in permitting said witness to testify that Mr. Reading’s duties and powers were as the agent of the *118 defendant, and other transactions of said Reading as agent of the defendant. 2 The errors being that this witness testified that the same Mr. Reading had the position of general manager; the letters in evidence were signed by him, the said Reading, and any testimony as to his instruction to said Reading contradicted this written evidence, and the admission of such testimony was very prejudicial to the plaintiff before the jury. The witness Childs was also allowed to testify that the fibre signs did not come up to the sample, for the reason that the sample was not in evidence and there had been no notice to produce the same. So far as the testimony of Mr. Childs was concerned, it may be admitted that his general manager, Mr. Reading, was derelict in the performance of his duties as general manager, but there was no testimony that the plaintiff knew of these matters or produced the same; the object of all contracts in writing is to avoid the inaccuracies of memory, and this exception points out how injuries were wrought to the plaintiff by failing to observe the written contract in question. This exception is, therefore, sustained. 3. “Error in presiding Judge in charging the jury: ‘I hold in this case that these memoranda here did not necessarily embrace the whole contract. So you are to take what is of these papers and the other evidence in connection with what was done at the time the memorandum was made;’ for the reason that, by this charge, his Honor permitted the jury to consider testimony which was inadmissible, and varied, contradicted and altered the written terms of the contract.” The Circuit Judge was in error when he held that these written agreements did not necessarily contain the whole contract, and the Circuit Judge allowed the jury to consider testimony which was inadmissible because it varied, contradicted and altered the written terms of the contract. This exception is sustained. 4. “The Circuit Judge refused the motion for a nonsuit, in which action he was in error. *119 3 (a)“Because the verdict did not carry out the charge of his Honor to find for the plaintiff the value of the posters which had been manufactured and set aside by the plaintiff to defendant’s order.” The law requires that the titles to said articles passed to the defendant upon the appropriation of the finished article to the contract. We remark just here that by the terms of the contract certain posters were to be delivered in certain amounts at different times; part of them had been accepted by the defendant, and, by the terms of his contract, he was liable to pay for the whole. It made no difference that all of the articles were not furnished to the defendant, because it was his fault that the balance of said posters, when finished by the plaintiff, were not called for. It is true the verdict embraced a part of these very posters, but it did not include the whole number which had been completed for the defendant by the plaintiff. (b) “The verdict of the jury disregarded the charge of his Honor, requiring goods which were manufactured and held subject to defendant’s order, according to the terms of the contract, to be recovered for.” Whenever a jury disregards the directions of a Judge a new trial should be ordered by him, and when not done by him, it will be done by this Court. The verdict of the jury should be responsive to the rulings of law by the Circuit Judge; whenever and wherever there is failure to do so, the law requires that a new trial shall be awarded on account thereof. (c) “The verdict of the jury was in error in failing to find for the plaintiff the value of 135 horse covers, the evidence showing that the horse covers were according to sample and as ordered; the letters written by the defendant showed that the defendant had retained these horse blankets and accepted them.” There had been a- failure by the plaintiff to manufacture according to design horse covers entitled “Pickmeup,” but the correspondence showed that the alteration had been *120 accepted by the defendant, and the defendant was liable therefor. (d) “Because the verdict was contrary to law, in failing to find for the plaintiff the value of the fibre signs which had been received and accepted,by the defendant, and had never unequivocally been tendered to the plaintiff.” This testimony was furnished by written letters by the defendant and these letters should have been construed by the Court, which was not done. 2 (e) “Because the verdict of the jury was contrary to law, being based upon the testimony of Mr. Childs that Reading had absconded and had no authority to write the letters, thus contradicting the written correspondence between the parties, seriously prejudicing plaintiff’s case by placing the odium of certain letters promising to pay upon the authorized agent of the defendant, who has since absconded, and creating in the minds of the jury that Mr. Childs and the defendant were the innocent victims of the rascality of their agent in this suit.” No doubt the general manager, Reading, was unworthy of the high position occupied by him, but this was the defendant's misfortune, for which the plaintiff was in no wise responsible. It was but just that the plaintiff should not be subjected to the slightest odium attaching to Mr. Reading’s misconduct, and the Circuit Judge was in duty bound to protect the plaintiff from any result of' the testimony here complained of. (f) “Because the verdict of the jury was contrary to the law, in that it was found upon testimony that was inadmissible and was worthless to contradict or overthrow the terms of the written orders.” We have already virtually sustained this subdivision in every respect; of course the verdict of the jury should alone be based upon the testimony that was admissible, and it was not in the power of the jury to use worthless testimony to contradict written orders. This exception and its subdivision are sustained. *121 It is the judgment of this Court that the judgment of the Circuit Court should be reversed, and a new trial is ordered. Messrs. Justices Jones and Gary concur in the result.