10 Utah 147 | Utah | 1894
This is an action by the plaintiff to recover of defendants 120,844.75, claimed to be due upon a written contract, which is set out in the complaint, and is in words and figures as follows:
“March 28, 1890. A. Fisher Brewing Company, Salt Lake City, Utah — Gentlemen: Will submit sketch for your trade-mark, with sketch for your bottle labels, also-submitting finished proofs of plates, and will furnish you with one and one-half (1£ million)' million labels in the course of a year after the proofs have been made, in black ■ and bronze, with trade-mark inserted, at fifty-five cents. (55c.) per M. labels; and will duplicate this first year’s shipment in each of the following five years at same rate after the expiration of this first year. Will also submit six different kinds of sketches for small advertising cards on style of cards submitted, printed in colors in front and black on back, furnishing you with 50 M. of each kind of cards, after sketches have been submitted, as soon as ready, at $9.75 per M. -cards. We shall also insert your trade*151 mark and compliment card on your edition of the panoramic view of Salt Lake City, and will furnish yon with 10 M. copies of said Salt Lake City view, with trade-mark inserted, after sketch of trade-mark has been submitted to you, as soon as ready, at 97c. per copy (ninety-seven cents) per copy of said view. Will attend to the application for registration of your trade-mark for you, and will submit designs for your different stationery headings and for a. hanger in course of a year, with your trade-mark embodied on same, furnishing you with 10 M. of each bind of the following stationery as soon as ready, viz., letter heads S-Jxll, letter heads 8-|x5-J, note heads 5-£x8-£, statements 5-g-x8-J, bills 8^x7, business cards and envelopes. Will also send you proof of bock card submitted in spring 1891. Price of hangers an d price of bock cards, in colors, is 37-Jc apiece (all prices are made on goods at our office at Milwaukee, with your name and trade-mark inserted, and will furnish you 300 bock cards for the season of 1891. Terms, cash on delivery. Very truly yours, American Publishing Co., of Milwaukee, Wis. Per A. E. Cotzhausen, Treas. All terms and conditions included in above approved, read, and agreed. A. Fisher Bry. Co., A. Fisher." (Signed in duplicate.)
The complaint alleges, in substance, that plaintiff substantially performed said contract on its part, except as to certain particulars wherein it was prevented by defendants, and alleges that defendants have paid no part of the sums due for articles furnished under said contract. The defendants answered, denying that they ever made the contract sued on, and allege that it was fraudulently altered, and is a forgery; but allege affirmatively that, owing to certain statements of the representative of plaintiff, they did indorse their firm name on the proposal of plaintiff, but with the express understanding that it was in no sense a contract, and was for an entirely different
The alteration which it is claimed was made in the contract sued on, and which defendants claim rendered it a forgery, was the interlineation above the name of defendants’ firm, as indorsed on the proposal, of the words: “All terms and conditions included in above approved, read, and agreed.” The evidence as to whether these words were interlined after the defendants indorsed the contract was certainly squarely in conflict. The question was submitted to the jury, and they found it to be a forgery.
We do not feel that we would be authorized to disturb their verdict. We think the alteration alleged to have been made, and set out above, was material, and, if the writing had been a contract before, the alteration would ¡have had the effect to destroy it, and render it a nullity; and, of course, if it was not a contract before, the unauthorized addition of these words could never make it one. Very slight alterations in a written instrument, made after it is signed by the obligor, if made without his knowledge or consent, and made by a party interested in the contract, or at the instance of such party, will destroy the instrument altogether. See Robinson v. Reed, 46 Iowa, 319; 2 Add. Cont. p. 853; Bigelow, Frauds, 255, and cases cited in note. In the brief of appellant we are urged to .set aside the verdict because the evidence fails to sustain the plea of fraudulent interlineation, and the same matter was earnestly presented in the oral argument. But there was evidence in the case from which the jury would have been justified in finding that the interlineations, both in
We have already said that we are of opinion that the alterations were material, and a very casual reading of the contract, as set out in the complaint and copied in this opinion above, will, it seems to us, convince any one that the words added above the firm name of defendant, to-wit, “ All terms and conditions included in above approved, read, and agreed,” are of vital importance in determining the meaning and legal effect of the entire instrument. Without these words, the explanation offered by defendant as to why he signed the paper at all, and his claim that he did so merely to show that the salesman of plaintiff bad called on his firm and made the offer contained in the writing, as a basis for future orders' for supplies, is 4 reasonable one. With these words in the writing, it is impossible for any one to believe that explanation. With these words added, the writing appears to be a perfect contract, consisting of an offer and acceptance. It is not our purpose to discuss at length the evidence introduced, or to attempt to say who ought to be believed or who should be disbelieved. We do say, however, that the entire transaction, so far as the plaintiff is concerned, bears all the evidences of the rankest kind of fraud and imposition upon the defendants. If this transaction is to be upheld, the defendants will be compelled to pay for enough advertising matter to run them for an indefinite period of time, variously estimated at from 10 to 100 years, the same being of a character that would ordinarily be changed each season. It may be said that the courts are not guardians ior business men who make foolish and improvident con
The course of dealing carried on by the plaintiff, as shown by the record, is certainly very singular, and bears evidence of a deliberate conspiracy to entrap the defendants. Such being the tendency of the entire evidence, it is not difficult to see how the jury, even upon the statement of defendant Fisher alone, found that the contract, so called, had been fraudulently altered, even though their verdict was equivalent to a verdict of guilty of forgery against the agent of plaintiff.
One other objection urged here is that defendants'were permitted to amend their answer on the trial, and after the introduction of testimony was begun. The amendment was allowed without previous notice, but no objection was made on this ground. “The court may, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading,” etc. Comp. Laws Utah, § 3256. Terms were imposed as a condition of filing the amendment complained of, there being no objection on the ground that it was without notice. We think there was no abuse of discretion.
The last objection urged is that the verdict was rendered by only nine jurors. This matter we have recently fully passed upon, and in our opinion the law authorizing a verdict by nine or more'jurors in a civil case is valid. Hess v. White (Utah), 33 Pac. 243. We are aware that two other territorial supreme courts, on a like statute, have taken a contrary view since the opinion in Hess v. White,
We have discussed all the matters which we think are presented by the record, although we have omitted several about which appellant’s brief has much to say. The judgment of the district conrt is affirmed, with costs.