James T. Hair Co. v. Walmsley

32 Mo. App. 115 | Mo. Ct. App. | 1888

Ellison, P. J.

— Plaintiff sued defendant on the following contract:

“$48. Sedalia, Mo., Oct. 9, 1884.

“ James T. Hair Company is hereby requested to publish our card, to occupy eight squares, once on each blotter leaf throughout one year’s supply advertising hotel register books for five or more hotels in Sedalia, for which we promise to pay to the order of the company the sum of forty-eight dollars, one-fourth on delivery of the books to the hotels, one-fourth three months, one-fourth six months, one-fourth nine months. All stipulations are detailed with ink in this contract.

“Card — To be in red ink. Name — John Walmsley & Co.

“Business — Furnishing goods, Carpets, etc., Tailoring, etc.

“ Street — 223 Ohio street.

“ Contract taken by Dailey, representing James T. Hair Company, Chicago.”

The trial below resulting in a verdict for defendant, plaintiff appeals.

Execution of the contract was admitted. Plaintiff introduced evidence tending to show a compliance on its part with the terms of the agreement and rested.

Defendant, notwithstanding he read the contract and knew its contents before signing, was then permitted to testify, “ that one Dailey, the agent of plaintiff at whose solicitation he signed said' order, and, before the signing thereof, assured witness that his should be the only card printed in red letters in the hotel advertising books, and on said assurance was induced to sign the contract, because witness’ card being the only one in red letters would bring it more prominently before the public, and that he would not have signed the order but for this representation, and this representation was the only consideration which induced witness to sign it; that he afterwards found that other red .cards were published in said hotel registers and lie refused to pay for his card.” “To all of which plaintiff objected, because it was an attempt by oral testimony to engraft additional stipulations upon a written contract which is complete in itself, and because it was an attempt to prove the preparatory talk which occurred before the signing of the contract, all of which by law is merged in the written contract and cannot be proven by oral evidence, and because the same was incompetent and irrelevant.” The court overruled the objection.

This testimony should not have been admitted. It was clearly an attempt to engraft an additional stipulation on a contract which is complete within itself. Pearson v. Carson, 69 Mo. 550; Tracy v. Union Iron Works, 29 Mo. App. 550.

The cases of Cole Bros. v. Weidmair, 19 Mo. App. 7, and Wright v. McPike, 70 Mo. 175, are altogether unlike the case at bar. In this case defendant knew what he was signing, and was not deceived as to the provisions, either by his own carelessness, or the acts of plaintiff, fraudulent or otherwise.

Other points made by defendant in support of the judgment are not deemed applicable and the judgment is reversed and the cause remanded.

All concur.