American Pub. Co. v. Fisher

• Decision Date: 12 June 1894
• Docket Number: 429
• Citation: 10 Utah 147,37 P. 259
• Court: Utah Supreme Court
• Parties: AMERICAN PUBLISHING COMPANY, APPELLANT, v. A. FISHER AND AARON KEYSER, COPARTNERS AS A. FISHER BREWING COMPANY, RESPONDENTS. [1]

37 P. 259

10 Utah 147

AMERICAN PUBLISHING COMPANY, APPELLANT, v. A. FISHER AND AARON KEYSER, COPARTNERS AS A. FISHER BREWING COMPANY, RESPONDENTS. ^[1]

No. 429

Supreme Court of Utah

June 12, 1894

APPEAL from the district court of the third judicial district, Hon Charles S. Zane, Judge.

Action by the American Publishing Company against A. Fisher and Aaron Keyser, copartners under the firm name of A. Fisher Brewing Company. From a judgment for the defendants' plaintiff appeals.

Affirmed.

Messrs Dey & Street (F. W. Von Cotzhausen, of counsel), for appellant.

The circumstances alleged must, if proved, necessarily and at all events, constitute fraud. The case must not be left to mere interference. 1 Bigelow on Frauds, 114. It must be shown in what the fraud consists and how it has been effected. 8 Am. & Eng. Ency. of Law, 653; Estep v. Armstrong, 11 P. 132; Id. 716. The pleadings must show the connection of the fraud with the alleged damage and the fraud must sustain to the damage the relation of cause and effect. 1 Bigelow on Fraud, 115-16. The fraud alleged must be proved; other fraud will not answer. Id. 179, note; Hoy v. Robinson, 31 P. 62. When the terms of a written instrument are impeached, the evidence should be clear and the facts abundantly established. Rabbit v. Dottan, 14 F. 19. Where a party can protect himself by ordinary care and prudence, he must do so, and if he relies upon the representations of another with whom he stands on equal footing, neither a court of law nor equity will relieve him from the effects of such folly. Notting v. Wright, 72 Ill. 390; Cooley on Torts, § 570-572; 8 Am. & Eng. Ency. of Law, 643; History Co. v. Dougherty, 29 P. 649.

Every one is presumed to know the effect of a contract which he signs, and misrepresentations as to its legal effect made to him by the other party, are not actionable and will not invalidate the contract. 8 Am. & Eng. Ency. of Law, 636, note; Upton v. Tribulcock, 91 U.S. 45; Clem v. Newcastle R. R., 9 Ind. 488; Gagger v. Winslow, 15 N.W. R. 242; Slaughter v. Gurson, 13 Wall. 379; Smither v. Calvert, 44 Ind. 242. If a party is illiterate and unable to read and write and is induced to sign the instrument by fraudulent misrepresentations as to its legal effect, this is fraud in the execution and is available at law to defeat an action founded on the instrument. Davis v. Snyder, 70 Ala. 315. For the party to treat the contract as if still binding, after he was drawn into it by fraud, will ordinarily have the effect to waive the right to treat it as invalid. 1 Bige. 434; Nounnan v. Suter Land Co., 22 P. 515; Grymes v. Saunders, 93 U.S. 55; 8 Am. & Eng. Ency. of Law, 637, note. The alteration to affect the validity of the instrument must be material. Burnham v. Ayer, 35 N.H. 354; Cole v. Hills, 44 N.H. 227; Com. v. Bank, 98 Mass. 12; 2 Bige. on Fraud, 637. There is a presumption that the alteration was made before the execution of the instrument. Ward v. Allen, 2 Met. 53; Gooch v. Bryant. 1 Shep. 390 The defendant cannot plead fraud as a defense and still retain the fruits of the contract. 3 Bigelow, 175, note p. A contract entered into on Sunday and void for that reason, is made valid by subsequent affirmance and ratification. Van Hoven v. Irish, 10 F. 14; Gregg v. Wyman, 4 Cush. 422; Hopkins v. Stefan, 79 Wis. 45.

The seventh amendment to the constitution of the United States provides that "in suits at common law, the right of trial by jury shall be preserved." The meaning of the words "trial by jury" ex vi termini has always been well understood and its meaning certain. 2 Story on Const. § 1779; Miller on Const. 492; Opinion of Justices, 41 N.H. 550; State v. Cox, 8 Ark. 436; Reece v. Knott, 3 Utah, 451. Seventh amendment is controlling in this territory. Webster v. Reid, 11 How. 437; Callan v. Wilson, 127 (U.S.) 540; Reynolds v. U.S. 98 U.S. 145; Bradford v. Ter., 34 P. 66. One of the constituent parts of a trial by jury, is that it should be composed of 12 men. 2 Hale, 161; Narval v. Rice, 2 Wis. 22. Unanimity is a prerequisite to a valid verdict. 2 Story on Const. § 1779; Cooley on Const. Lim. 320; Work v. State, 2 Ohio St. 296; Kleinschmidt v. Dunphy, 1 Mont. 131; Bradford v. Ter., 34 P. 66-68; State v. McClear, 11 Nev. 39-60; Reece v. Knott, 3 Utah, 451-454-5. The reasons given by this court in Hess v. White, are ably answered and refuted in Bradford v. Ter., supra.

Messrs. Rawlins & Critchlow (Messrs. Brown & Henderson, of counsel), for respondents.

SMITH, J. MERRITT, C. J., and MINER and BARTCH, JJ., concur.

OPINION

SMITH, J.:

This is an action by the plaintiff to recover of defendants $ 20,844.75, 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 1/2 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-mark and compliment card on your edition of the panoramic view of Salt Lake City, and will furnish you 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 kind of the following stationery as soon as ready, viz., letter heads 8 1/2x11, letter heads 8 1/2x5 1/2, note heads 5 1/2x8 1/2, statements 5 1/2x8 1/2, bills 8 1/2x7, business cards and envelopes. Will also send you proof of bock card submitted in spring 1891. Price of hangers and price of bock cards, in colors, is 37 1/2c 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 purpose, and that it was at the time so understood by both parties. The answer also sets out at great length an explanation of the reasons why the defendants approved certain designs for work afterwards done by plaintiff. Upon the trial a verdict was rendered in favor of defendants, concurred in by nine jurors. A motion for a new trial was overruled, and plaintiff appeals.

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 219; 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...