Wyckoff, Seamans & Benedict v. Ferree

Opinion by Mr. Justice Fell, The defendant was engaged in the business of street railway advertising, and in 1893 entered into a written agreement with the plaintiffs to place their advertising cards in a number of street cars. During the running of the contract the plaintiffs desired to withdraw their cards and substitute in place thereof the cards of other parties to whom they had sublet the spaces for the summer months. Upon the refusal of permission to do this the plaintiffs gave notice that they would no longer be bound by the contract, and brought this action to recover damages for the alleged breach. Under a similar contract a substitution had been permitted in 1892. It was claimed by the plaintiffs that the agreement of 1893 was made on the faith of [264] a parol stipulation that a substitution of the advertisements of others would be allowed. This was testified to by one witness called by the plaintiffs, and distinctly denied by the defendant, and the issue of fact raised was submitted to the jury. Whether it should have been submitted under the testimony produced is the only question now to be considered. The agreement reads: “You are hereby authorized (upon conditions expressed or referred to herein only) to insert our advertisement as per copy to be furnished by us, in one hundred and twenty-four cars as per other side of this contract, to occupy a space of eleven by forty-two ” .... etc. This order was prepared by the plaintiffs’ agent, sent by mail to the defendant and accepted by him without change. The authority given by the plaintiffs was to insert their advertisement, and this is what the defendant agreed to do. There was no hiring of space to be used as the plaintiffs might elect, but a stipulation that their advertisement of a fixed size should be placed in cars for a fixed time. The agreement gave no right to sublet the space or substitute the cards of other persons. The right claimed was based upon the modification of the agreement of the previous year. The change then permitted was requested by letter; it was not claimed as a right under the agreement, but asked as a favor to enable the plaintiffs to reduce their expenses during a period when it was not advantageous for them to advertise. A compliance with a request in 1892 was made evidence upon which to base a right in 1893. There had been no omission through fraud, accident or mistake; there was no ambiguity in the language of the contract; there had been established no business usage which threw light upon the intention of the parties, and there was nothing to explain. The alleged parol agreement was at variance with the written contract. It was supported by the testimony of one witness only, and denied by that of another. The previous modification, claimed as a corroborating fact, was based upon a request which negatived any claim of right, and its weight would seem to be with the defendant. We are of opinion that this evidence was not sufficient to sustain a finding by the jury which changed or modified the written agreement between the parties, and binding instructions should have been given as requested in the defendant’s third, fourth and fifth points. [265] The first, second, third and fourth assignments of erroi are sustained, and the judgment is reversed.