Gribble v. Everett

REYBURN, J. The contract upon which plaintiffs brought this action is a printed form, the substantial part of which is as follows: “$48.00. Springfield, Mo., January 31, 1899. “Insert our advertisement in the Frisco Line Magazine one, year, for which we agree to pay four dollars per month, payable quarterly. Space 1-8 page. “ Springfield Planing Mill & Lumber, Co. [35] “No contract or agreement other than this recognized.” The contract is on the regular printed form used by plaintiffs, all of which is printed except the figures at the upper lefthand corner, “$48.00,” and. the words “our” in the first line and “one year” and “we” in the second line, and “four dollars per month” in the second line, and “1-8 page” in the fourth line, and the date at the top. Plaintiff filed in the justice’s court, where the case was begun, a formal petition alleging the execution of a contract therewith filed, wherein it was agreed that plaintiffs should publish in the Frisco Line Magazine an advertisement for one year, occupying one-eighth of a page, for which the Springfield Planing Mill & Lumber Company by its owner, defendant, agreed to pay four dollars per month payable quarterly; that plaintiffs complied with the terms of the contract, but defendant failed to make any payment, and judgment was asked for $48, with interest from date of demand. Defendant’s answer, duly verified by his affidavit, denied the execution of the. alleged contract, alleged that plaintiffs agreed, if defendant placed an advertisement with them to make such advertisement for the sum of two dollars and fifty cents, and presented a printed blank to defendant with request that he sign it in the name of his business, and that they would then fill in the blanks in such paper and perform their part of it for the consideration of two dollars and fifty cents. That he signed such blank paper, but at the'time he signed it only the printed portions appeared, and there was no writing whatever thereon; that he signed it with the distinct agreement that two dollars and fifty cents Was to be written in as the full consideration for the performance of the alleged contract of advertising by plaintiffs, and with such explicit understanding first had with them. That after signing it in such manner, plaintiffs filled in all the blanks, and fraudulently and; without authority, knowledge or consent of defendant, and contrary to [36] the agreement, wrote in the snm of forty-eight dollars instead of two dollars and fifty cents, the amount agreed upon. The answer further set forth that, after signing the paper sued on, plaintiffs agreed with defendant that if defendant would introduce plaintiffs to business men of Springfield, with a view of procuring their advertisements, plaintiffs would accept such service in full payment of defendant’s advertisement, and that defendant accepted such proposition and introduced plaintiffs to many of the business men, whereby the plaintiffs secured several advertisements. A jury having been waived, the case was tried before the court, which rendered judgment for the defendant. The evidence of plaintiffs consisted of the depositions of W. T. Williams, co-plaintiff, who made demand for payment about February, 1900, and E. J. Williams, who solicited and obtained the order in suit. The proof in behalf of defendant consisted of the testimony of defendant and of his bookkeeper, the latter of whom was present when the order was .given. The evidence was in direct conflict, the plaintiffs’ witnesses testifying plaintiff performed the contract on their part, and that the order was in the complete form presented in the suit when delivered to plaintiffs’ agent, and the defendant’s testimony tending to establish that none of the blanks were filled up at the time defendant signed the title under which he was engaged in business, and that the amount he was to pay for the advertisement was but two dollars and fifty cents or three dollars, and that he was to be released from payment of this amount if he presented plaintiffs’ agent to merchants in Springfield which he accordingly did. The only instruction was a declaration asked by plaintiffs at close of the case that under the pleadings and the evidence the judgment should be for plaintiffs, which was properly refused both by reason of its peremptory tone as well as of the fact that contradictory testimony had been introduced [37] by plaintiffs and defendants, respectively, to sustain tbe issues of fact raised by tbe pleadings. Appellants assign as further error committed at tbe trial that, over objections of plaintiffs, tbe court permitted defendant to testify that bis unbroken practice was to attach bis individual name to tbe corporate title under which be conducted bis business, to checks, notes and contracts, and that tbe court refused to exclude tbe testimony repudiating and assailing tbe order sued on as having been fraudulently and improperly completed by filling out tbe blanks in an amount not in accordance with tbe agreement between plaintiffs and defendant. Tbe defendant acknowledged tbe writing by him of bis business title at bottom of tbe order, and therefore tbe further statement by him that be customarily added bis individual name where be executed important instruments, if immaterial and incompetent, was not error sufficiently grave to warrant a reversal of tbe finding of tbe trial court. Concerning tbe testimony in assault upon tbe order, it is sufficient to say that tbe fundamental rule that parol contemporaneous evidence can not be introduced to contradict or vary tbe provisions of a valid instrument in writing, which is devoid of patent ambiguity invoked by plaintiffs, is not applicable. Tbe defendant bad denied under oath tbe execution by him of the contract in suit, and by bis answer bad presented tbe issue whether tbe order filed was tbe actual contract, between tbe parties or whether, in violation of tbe terms of tbe oral agreement between them, tbe blanks therein bad been filled up for an amount exceeding tbe stipulated consideration. If tbe trial court found from tbe testimony that tbe version of defendant was tbe true statement of tbe method and conditions attending tbe delivery of the order, and that only tbe business title of defendant was written or signed at foot of tbe order in blank when received by plaintiffs ’ solicitor, then implied authority was conferred to complete tbe instrument by inserting tbe true [38] consideration agreed upon, but not otherwise. Mackey v. Basil, 50 Mo. App. 190. Inaccuracies and discrepancies were presented in the testimony, but the credibility of the witnesses, the weight to be given to their testimony and the preponderance of the testimony must be passed upon by the trial court and its finding, standing as the verdict of a jury and supported by substantial testimony, will not be disturbed.. Judgment affirmed. Bland, P. J., and Goode, J., concur.