International Text-Book Co. v. Marvin

166 Mich. 660 | Mich. | 1911

Ostrander, O. J.

(after stating the facts). We have had difficulty in applying to the record much that is said in the main brief for appellant, in making which, Bule 40 of this court was not observed. We have read the “Additional Assignment of Error and Brief,” signed by foreign counsel but not by local counsel, filed in this court June 5, 1911. It is assumed therein that the effect of the rulings made by the trial court, adverse to plaintiff, was to impair the obligation of a contract, in violation of the Constitution of the United States. No Federal question was suggested at the trial, and no Federal question is considered by this court.

No argument is made in the brief for the appellee to support the rulings admitting testimony, the charge of the court, or the theory according to which the issue of fact was left with the jury. Nevertheless, we must sustain the judgment if no error occurred at the trial. The theory according to which the issue was left to the jury is one which assumes that defendant agreed with plaintiff’s agent that he would subscribe for a course of instruction in mechanical engineering, and that if this was so he would not be bound by his written proposal and subscription to take a course of instruction in mechanical drawing. It does not appear that defendant’s counsel made objection when the court advised the jury that defendant claimed that jt was represented to him that he was to be given a course of instruction in mechanical engineering, and with that understanding he attached his signature to this contract. Some of defendant’s testimony supports this statement of his claim. There is to be found in it support also for the contention that he did not suppose the writing was a contract, but supposed that it was a mere enrollment which involved no liability. As the theory that defendant intended to make a written contract or proposal was accepted by the court, approved by defendant, and given to the jury, we accept it in considering the assigned errors the more readily because defendant did not deny the execution of the writing.

It is contended that the effect of the final act of defendant, i. e., the signing of the paper writing containing the proposal and delivering it to plaintiff’s agent, must be determined from the writing; therefore all testimony concerning what plaintiff’s agent said concerning its legal effect, and that defendant was not obliged to continue the course, was improperly received. The contention is sustained by the general rule. An inspection of the writing shows that it is so drawn as to be a complete memorial of the arrangement of the parties and, after acceptance by plaintiff, a complete contract. It does not fall within the class of writings considered in Phelps v. Whitaker, 37 Mich. 72; Weiden v. Woodruff, 38 Mich. 130; Walter A. Wood Mowing, etc., Machine Co. v. Gaertner, 55 Mich. 453 (21 N. W. 885); Bird v. Pope, 73 Mich. 483 (41 N. W. 514); Palmer v. Roath, 86 Mich. 602 (49 N. W. 590); Richey v. Daemicke, 86 Mich. 647 (49 N. W. 516); Butler v. Iron Cliffs Co., 96 Mich. 70 (55 N. W. 670), and many other like cases. And therefore testimony to vary or contradict its terms was inadmissible. Some of these cases and others are considered, commented upon, and distinguished in Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665). See, also, R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818).

Undoubtedly, parol evidence is admissible to show fraud and deceit at the inception of an instrument, and in this court counsel for appellee argues that plaintiff’s agent was guilty of fraud and deceit in inducing defendant, a workingman with a family, to believe that he could complete, or could profitably pursue, a correspondence course in engineering. He points out that a high school graduate must pursue such a course in our universities for four years, and says it is only the credulous who are seduced into subscribing for such a course of study in a correspondence school, with the idea of pursuing it in one or two hours of daily study. Whatever merit this contention may possess, it is not within the theory given to the jury. As the case was tried, the court should have directed a verdict for plaintiff.

It is contended by counsel for appellee that, inasmuch as plaintiff offered no proof of damages sustained by the breach of the contract, a verdict could have been directed in its favor for nominal damages only, and for this reason the judgment should not be reversed. International Text-Book Co. v. Schulte, 151 Mich. 149 (114 N. W. 1031); International Text-Book Co. v. Jones, ante, 86 (131 N. W. 98). See, also, Wigent v. Marrs, 130 Mich. 609 (90 N. W. 423). The point was not made in the court below, where, as has been stated, defendant apparently conceded the amount of the verdict if one was returned for plaintiff. We cannot know that plaintiff would not have presented further proofs if the concession had not been made. We therefore reverse the judgment with the right to a new trial. In view of the contentions made in this court in behalf of plaintiff, we think it proper to say that we are unable to distinguish this case and the first two of those above cited upon the facts.

The contract contains the provision that the subscription “when accepted by you shall not be subject to cancellation, and that you shall not be required to refund any part of the money paid for said scholarship,” which provision was not contained in the contracts considered in the cases above referred to, and contains also a provision that if default is made in the payment of any installment the whole amount remaining unpaid should thereupon become due and payable at the option of plaintiff. We are nevertheless of opinion that the damages recoverable are those occasioned by the breach of the contract, to be measured by the rule announced in the cases cited. It may be found that they are, substantially, the amount unpaid upon the subscription.

The judgment is reversed, and a new trial granted.

Bird, Moore, McAlvay, and Brooke, JJ., concurred.