Brown v. Everhard

• Citation: 8 N.W. 725,52 Wis. 205
• Parties: BROWN v. EVERHARD.
• Decision Date: 19 April 1881
• Court: United States State Supreme Court of Wisconsin

52 Wis. 205

8 N.W. 725

BROWN

v.EVERHARD.

Supreme Court of Wisconsin.

Filed April 19, 1881.

Appeal from county court, Fond du Lac county.

Action upon the following contract in writing: “The Biographical Dictionary and Portrait Gallery of Eminent and Self-made Men of the State of Wisconsin; to be completed in one elegant quarto volume, bound in full morocco; printed on fine toned paper; of about 600 pages, and illustrated with steel engravings.

“THE AMERICAN BIOGRAPHICAL PUBLISHING Co., CHICAGO, CINCINNATI, AND NEW YORK.

GENTLEMEN: I agree to take one copy of the above-named work, and to pay you $25 per copy on delivery of the same to my address.

A. EVERHARD.

Address, Ripon, Wisconsin.

Date October 26, 1875.”

The instrument is indorsed as follows: “If the sketch of Dr. Everhard should not be published this order is void. Pay to order of H. M. BROWN. American Biographical Publishing Co., per H. M. Brown, Secretary and Treasurer Company.”

The defendant answered a general denial and a former suit in bar. The last defence is not considered.

The cause having been tried in the county court without a jury, the court found as facts that the contract was originally entered into between the defendant and such publishing company as above stated, and that the company sold and transferred the same to the plaintiff before the action was commenced. The court also found as follows: “That subsequently to the making of said contract the agent of said company, on the same day of the making thereof for said company, made a further agreement with the defendant that the order or contract marked ‘D’ should not be considered as an order for the book mentioned therein, and thereupon made a further agreement and contract that the said company and firm was to send the defendant a sketch of defendant, which, if he approved and ordered published in said book, he was also to give said company an order for the book; that such sketch was by said firm sent to defendant with a request to order the book, but the defendant did not approve the sketch, or order it published in said book, or give an order for the same.” As conclusions of law the court found that the plaintiff could not recover, and that the defendant was entitled to judgment for his costs. Judgment having been entered accordingly, the plaintiff has appealed therefrom.S. J. Morse, for appellant.

J. J. Foote, for respondent.

LYON, J.

The proof is that the indorsement on the order for the book, “If the sketch of Dr. Everhard should not be published this order is void,” was written a few minutes after the defendant signed the order; and it is quite apparent that it was so written before or simultaneously with the delivery of the order to the agent of the publishing company. The order and indorsement must therefore be regarded as containing the terms of the original contract, and all of them. If that contract remains in force, there seems to be no doubt of the right of the plaintiff to recover,...