Cleckley v. Mutual Fidelity Co.

Simmons, C. J. 1. Where an incorporated company enters into a contract with an individual, whereby it promises to pay a certain sum of money at the end of forty months, the individual agreeing to pay the company a specified sum monthly, and the contract further provides that its terms shallnot bechanged or modified except by resolution of the board of directors, in a suit by the individual against the company on the contract, evidence that, at a time subsequent to the date of the contract, agents and officers of the 'company, orally and in writing, had informed the plaintiff that the contract would mature in fourteen months, was inadmissible, and was properly excluded by the trial judge. 2 Even if the plaintiff could combine with a suit on the contract an action for the rescission of the contract on the ground of fraud, a nonsuit should be granted as to this latter branch of the ease, when it appears from the evidence that the plaintiff had received from the defendant, in dividends on [467] the contract, more than he had paid such defendant, and that no restoration or offer to restore had been made. Argued February 23,— Decided March 19, 1903. Action on contract. Before Judge Eve. City court of Richmond county. March term, 1902. Henry C. Roney, for plaintiff. O. Henry Cohen and R. R. Hieles, for defendant. Judgment affirmed. By four Justices. Lamar, J., disqualified.