Ambrogetti v. Strahorn

McBRIDE, C. J. There are a few very technical objections taken to the instructions, but, considered as a whole, they constitute a plain, commonsense exposition of the law applicable to the case. [277] The first objection is to the use of the following language, “He claims that in preparing the contract, Mr. Strahorn, through his agents, of course, fraudulently inserted some different pieces of work from those which Mr. Ambrogetti had agreed to do,” etc. It is argued that the phrase, “through his agents, of course,” amounted to an expression of an opinion or an intimation by the court that it would be less probable that Mr. Strahorn would commit an act of fraud than that his agents would do so, and would have a tendency to excite the sympathy of the jury and give defendant an advantage not warranted by the facts. The objection is exceedingly fine spun, and has no real merit, especially as the evidence is not legally before us and cannot be here considered. The first paragraph of the further and separate reply states that “defendant, through his duly authorized agent, solicited this plaintiff” to enter into the contract, and that “his said authorized agent took this plaintiff over a portion of the line,” etc. From aught that appears here the evidence may have been conclusive and uncontradicted that the whole contract had been prepared through an agent of defendant, as the pleadings would seem to indicate. The language used was not necessarily unfavorable to plaintiff. If, in fact, the evidence had indicated that the contract had been prepared by defendant’s agent and the court had instructed the jury without qualification that in order to hold defendant liable for a fraud it must find that he fraudulently inserted something in the contract not contemplated by the parties, such an instruction would have been much more likely to have misled the jury than the instruction given. We will not presume error, but, on the contrary, will presume that the facts actually proven [278] justified the language used. In no event would the language used constitute reversible error. It is urged in the brief that unusual provisions in a contract will sometimes place upon the party drawing it the presumption of fraud if such unusual provisions are to the disadvantage of the other party, and will place upon the party drawing the instrument the burden of proof. But in the instant case the provisions of the contract are not unusual; and especially in regard to the description of the work to be performed. Such descriptions are common to all such contracts and could not be left out of any. There is nothing in the bill of exceptions to indicate that the plaintiff was in any way incapable of reading and understanding the contract, or that he occupied such a relation of confidence with the other party as to excuse him for failure to do so. So far as appears he was dealing at arm’s length with defendant and must be presumed to have known what he was signing. The instruction in that regard substantially followed the law as laid down by Mr. Justice Brown in Lovell v. Potts, 112 Or. 538 (226 Pac. 1111, 1113), and is not objectionable. Other instructions are objected to, as shown in the statement, but, taking them as a whole, they were entirely fair to plaintiff and presented the law in a plain, untechnical way, to the jury, and contain no reversible error. The judgment is affirmed. Affirmed. Bean, Brown and Coshow, JJ., concur.