161 Iowa 535 | Iowa | 1913
I. This case bas once before been in this court. 153 Iowa, 11. The question then determined had relation to the nature of proof which was competent under the pleadings as they then stood. By amendment the defect has since been remedied. In stating the issues we shall refer to the parties as plaintiff and defendant.
Plaintiff sued upon a contract alleged to have been entered into with the defendant September 4, 1908, which so far as is material to this appeal is as follows:
*537 This agreement made this 4th day of September, by and between Hessig-Ellis Drag Company of Memphis, Tennessee, the party of the first part, and Todd-Baker Drag Company of Sioux City, Iowa, the party of the second part, witnesseth: First. In consideration of the purchase of a certain quantity of the product of the party of the first part by the party of the second part, said product being known and described as Dr. Note's Cuban Hair Restorer and Tonic, the amount of said purchase being designated by order given this day and date, and which for the purpose of identification is marked ‘A,’ now, therefore, in consideration of the faithful fulfillment of the terms of said order A, together with the terms of this contract by the party of the second part, the party of the first part agreed to contract with the Zellner Adv. Agcy., Memphis, Tennessee, for from 10,000 to 20,000 lines agate measure of advertising specifying the Tribune and Journal papers, singly or divided, said advertising to be executed during the twelve months following date of the delivery of the goods described by order A at Sioux City. . . . Third. ... If for any reason the party of the second part should default in the terms of the agreement made this day and date, then in that ease the party of the first part shall have a measure of damages against the party of the second part, the collection of the amount specified in order A, together with claim for whatever advertising that may have been . executed in the local papers at Sioux City up to and inclusive of the date of default. . . . Sixth. We hereby authorize • the Hessig-Ellis Drug Co. to place an order for advertising as provided for in clause first of this agreement through the Zellner, Memphis, Tenn., advertising agency, at the expense of the party of first part. [Signed] Todd-Baker Drug Company. .
In consideration of the fulfillment of the terms of the order ‘A’ and contract ‘B’ by the party of the second.part, ■the party of the first part agrees to take back at full invoice price all goods remaining unsold in the hands of the party ■ of the second part, at the end of the Iowa advertising contract. Party of second part to have first option on melon seed proposition.
Plaintiff avers that in pursuance of such contract it . placed the ■ amount of advertising provided for, and pursuant
In a second count of the petition estoppel and acquiescence is pleaded against the defendant, based upon the allegation that, with full knowledge of the acts performed by plaintiff under the contract, defendant co-operated with it in placing the goods on sale, and that plaintiff, at the request of defendant, furnished advertising matter to customers of defendant making application therefor.
By way of answer the defendant denied that it had signed the contract in suit and admits that plaintiff shipped to it a large amount of merchandise, which defendant avers it. has offered to return to plaintiff, and that such offer has been continuous, and that said goods are held by it at the disposal of plaintiff. It says that it signed a contract similar to the one sued upon but not the one sued upon, for the word “Iowa” before the words “advertising contract,” as now appears, was not in the contract signed by the defendant; that the word “Iowa” has been inserted since it was signed by the defendant; that such was done without- the knowledge or consent of the defendant and was fraudulently and willfully done, and that it never ratified or consented to such act. Defendant avers that such constituted a material alteration of the contract and destroyed its validity. That upon dis
In reply the plaintiff denies that the word “Iowa” was not in the contract¶at the time it was signed by defendant’s president and denies that any one authorized by it willfully or fraudulently altered the same as charged, without knowledge, consent, or ratification thereof by defendant. Denies that any change was made after execution and delivery.
There was a trial to a jury, resulting in a verdict against plaintiff on its claim and in favor of the defendant on its counterclaim.
While the general rule is that the construction of written instruments is a duty of the court, and that whether an alteration is material or otherwise is a matter of law, and while in the present case the court might properly have instructed that under the undisputed facts the change, if made, should be held to be a material one, yet in submitting that question to
III. There was, as indicated by the issues raised, sharp dispute over the question as to whether the contract had been altered in the respect claimed after it had been signed by the appellee. This, among other questions, was submitted to the jury. As to this error it is claimed by appellant, that such submission was under evidence which showed no more than a mere opportunity to change, and that from such no proper finding of such a change could be had.
In the same instruction the jury was told that the burden of proving alteration after delivery was upon the defendant to show that plaintiff, through some one acting for it, willfully and fraudulently altered the contract after execution and delivery to the defendant, without the knowledge or consent of the defendant.
Instruction No. 9 stated the correct rule “that fraud is never presumed but . . . may be established by direct proof or from facts and circumstances' connected with the transaction from which fraud reasonably may be inferred.” There was no direct proof as to when and by whom alteration was made, if made, excepting the testimony of the president of the appellee that the word “Iowa” was not in the contract
And the proof of the fact did not, as contended by appellant, depend upon a presumption based upon mere opportunity. It was not disputed that Mr. Murphy was the agent of the appellant in the particular matter then in hand. He received from the appellee, when it was signed, the contract in whatever condition it may have been. It is nest found in the possession of appellant, by whom a copy was sent to the appellee. There is no claim that it was at any time out of the possession of Mr. Murphy or his principal, affording opportunity for it to be altered by others.
Such proof is of circumstances which, if unexplained, would warrant a jury in finding that the alteration was made by the appellant or by its agent after it wás signed by the president'of the appellee, if credence was given to his testimony. The instructions given are not open to the objection made by appellant.
IV. The contract upon which appellant relies is dated September 4, 1908. On September 7th the appellant wrote to the appellee stating among other things: “We are herewith inclosing you an exact copy of order and contract, and if they compare identically with the ones left with you by Mr. Murphy, the same are accepted by us.” Mr. Todd, the president of the appellee company, testified that, at the time of signing the contract with Mr. Murphy, the latter handed him a folded paper with the remark, “Here is your copy;” and, supposing it to be all right, he laid it on his desk with a pile of letters. Hpon receiving the letter of September 7th, which the witness testifies was during fair week, he put it on his desk, without reading, and laid it aside to go over
YI. Over the objection of the appellant, one P. B. Myers, of the Myers-Dillon Drug Company, of Omaha, testified that in 1908 his firm signed a written contract with the HessigEllis Drug Company for the handling of the Cuban Hair Restorer and Tonic, and that there was a typewritten clause at the bottom. From the nature of the questions then asked, we assume that appellee’s counsel by further inquiries sought to show that the typewritten clause was similar to that on the contract in suit; that it had a blank at the place used in inserting the word “Iowa” in this paper; and that after his transactions with appellant the witness discovered that the blank had been filled subsequent to its execution. Upon objection this testimony was excluded.
The deposition of R. R. Ellis, manager of the appellant company, was read in evidence. On cross-examination inquiry was made of him as to transactions with other persons or companies which it was claimed had resulted in differences and litigation. The trial court did not admit the answers, but prejudice is urged because of alleged misconduct of counsel for appellee in reading the suggestive interrogatories in the presence of the jury. We cannot hold such as misconduct warranting a reversal in the light of the rulings and remarks of the trial court made at the time of the offer and exclusion of such testimony.
VIII. Instructions offered by the appellant were refused. They presented a theory of the case, under the evidence, which was not in harmony with that adopted by the trial court nor with what we conclude to be the law governing the case. We have considered the instructions given in connection with those offered by appellant and are of opinion that there was no error in refusing to give the offered instruction, nor was there error in the instructions given.
X. At the close of the testimony plaintiff (appellant) moved for a directed verdict against defendant (appellee) on its counter-claim. Such was denied and error is charged. If there was such a material and fraudulent alteration as to vitiate the contract, then goods shipped to the appellee under it were entirely at the risk and expense of the sender, unless they were accepted by the consignee after knowledge of the alleged fraudulent alteration. This was one of the questions in dispute, and the motion to direct a verdict was properly overruled.
XI. Appellant’s motion for new trial was overruled, and error is claimed in so doing. It presented the alleged errors.
The judgment of the trial court is Affirmed.