Cohen v. Jackoboice

• Citation: 101 Mich. 409,59 N.W. 665
• Court: Supreme Court of Michigan
• Decision Date: 10 July 1894
• Parties: COHEN ET AL. v. JACKOBOICE.

59 N.W. 665

101 Mich. 409

COHEN ET AL. v. JACKOBOICE.

Supreme Court of Michigan

July 10, 1894

Case made from circuit court, Kent county; William E. Grove Judge.

Action by David Cohen and another, co-partners as Cohen & Co. against Joseph Jackoboice. Judgment for defendant, and plaintiffs appeal. Reversed.

William J. Stuart, for appellants.

Frank A. Rodgers, for appellee.

McGRATH C.J.

Plaintiffs are publishers of the Lumber Worker. On September 10, 1891 defendant gave to plaintiffs the following written order: "The Lumber Worker Co., Cincinnati, O.: Please insert my advertisement in the Lumber Worker twelve months, to occupy one eight page, for which we agree to pay you or order the sum of twenty-four dollars, payable quarterly. Joseph Jackoboice." After plaintiffs had published said advertisement for six months, defendant wrote them to discontinue the advertisement, and sent them the amount due to date. Plaintiffs continued the publication to the end of the year, and sued to recover the balance. The trial court held that the writing did not constitute such a written contract as would exclude parol evidence of a contemporaneous agreement that, if the advertisement did not suit, it could be discontinued at any time. In this we think the court erred. There is no ambiguity in this instrument. It is an order to insert an advertisement, to occupy a given space, for a given period, at a given price, and specifies when the price agreed upon shall be paid. It contains all the indicia of a contract, except that it was not executed by both parties. Defendant does not attempt to supply an omission in the instrument. He does not undertake to show any fraud or misrepresentation in matters of inducement. Although this instrument directs a publication for 12 months, he was allowed to show that he reserved the right, in case the advertisement did not suit, to discontinue it at any time. In other words, he was allowed to show, by parol, that he reserved a right inconsistent with the plain and express provisions of an instrument which could have no other office than as a contract, to be made effectual upon acceptance, and needing only such acceptance to give it all the force and effect of a contract. Suppose it had been written out by defendant, but it had not been signed by him, but had been delivered with like intent. There is no question of the statute of frauds here.

In Farmer v. Gregory, 78 Ky. 475, it was held that a writing evidencing the whole of an agreement between the parties, which has been delivered, accepted, and business transacted under it, although not signed, has the same force and effect as if it had been signed by the parties, as to being varied by parol. The general rule is that a receipt is always subject to be explained, varied, or controlled by parol, but this is true only so far as it is such in fact as well as in name. Though a paper purports to be a receipt still, if it in fact contains a complete contract between the parties, to that extent it cannot be varied and contradicted by parol evidence. In Scott v. Whittemore, 27 N.H. 309, it was held that a receipt given to an officer "for 10 bushels of rye, valued at $100," could not be explained by parol evidence to signify 100 bushels of rye unthreshed. In Bursley v. Hamilton, 15 Pick. 40, Bursley, as deputy sheriff, attached certain property as that of one Nye, and defendant receipted for the goods as "this day attached by said Bursley, as the property of Isaiah Nye, and taken at the suit of Averill, which goods and chattels I promise to deliver to said Bursley on demand." The court held that, by the receipt, defendant admitted that the property attached was the property of another person, and promised to return it; that, in an action to enforce the promise, he was precluded by such admission from alleging property in himself; and that parol evidence was inadmissible so far as it was intended or would have the effect to vary, alter, or control the written contract, and to ingraft a defeasance or condition upon a contract, absolute and unconditional. See, also, Curtis v. Wakefield, Id. 437. In La Farge v. Rickert, 5 Wend. 187, McNitt, as agent for La Farge, distrained Carpenter's property for rent. After distress, the agent agreed to buy of Carpenter sufficient property to satisfy the rent. Defendant consented, and signed the memorandum in writing, in the nature of a receipt, describing the property and prices, and concluding as follows: "All of which I promise to deliver to said La Farge on or before ***, or pay said La Farge the sum of," etc. The court held that, inasmuch as the law fixed the place of delivery as the creditor's residence, the written contract of the parties, according to the established rules of construction, had settled their rights and duties as to the place of delivery, and it was improper to admit parol evidence of declarations before or at the time of the giving of the receipt to show that a different place had been selected. In Goodwin v. Goodwin, 59 N.H. 548, the instrument was as follows: "In consideration of $2,500, to me paid by Martha A. Goodwin, executrix of said will, I hereby waive all right to contest said will, or the proof thereof, and all claim I have as heir of said deceased." It was held that the instrument was of a double nature, and, in so far as it was a receipt, it was capable of explanation and contradiction with regard to any fact erroneously stated, but that in its main feature it was more properly to be regarded as a contract made binding upon the plaintiff, by being delivered to and accepted by her; that in this aspect it could no more be varied or controlled by oral evidence than any other written contract between the parties; that if the document had one distinct meaning, in reference to the circumstances of the case, it must be construed accordingly, and evidence that the party executing intended to express some other meaning was not admissible. In Marks v. Mill Co., 43 Iowa, 146, it was held that the writing, although in form of a receipt, expressed a contract of bailment which could not be contradicted or varied by evidence of any custom or usage. In Alcorn v. Morgan, 77 Ind. 184, it was held that a written lease, in form a receipt, but containing independent stipulations, must be regarded as a contract, and that parol evidence was admissible to vary or contradict the receipt, but was not to add to or take from the terms of the contract. To the same effect are Squires v. Amherst, 145 Mass. 192, 13 N.E. 609; Carpenter v. Jamison, 75 Mo. 285; Young v. Cook, 15 La. Ann. 126; Brown v. Brooks, 7 Jones (N. C.) 93. In Wycoff v. Irvine, 6 Minn. 496 (Gil. 344), certain bankers receipted for a sum "to be loaned out; we to account to him for the principal and interest, less our charges, not to exceed two and one-half per cent. per annum." Held, that parol evidence tending to show that the money was to be loaned for the period of six months, and that the brokers were to be liable for the amount and interest, would be in direct conflict with the terms of the receipt, and could not be admitted. A bill of lading partakes of the nature of a receipt and a contract, and, so far as it partakes of the nature of a receipt, it may be explained or perhaps contradicted, but, to the extent that it defines the liabilities of the parties, it is subject to the same rules as other written contracts. Chapin v. Siger, 4 McLean, 379, Fed. Cas. No. 2,600. The same rule prevails as to bills of sale or of parcels. In Thompson v. Williams, 30 Kan. 114, 1 P. 47, it was held that while a writing which contains simply an acknowledgment of payment or delivery is only prima facie evidence of the fact, and may be contradicted by oral testimony, yet when, in addition to such acknowledgment, it contains an agreement to do anything in respect to the property delivered, then, as to this latter matter, it stands on the basis of any other written contract, and cannot be contradicted or varied by parol testimony. In Linsley v. Lovely, 26 Vt. 123, it was held that, if the bill of sale expresses the contract of the parties, it cannot be controlled by parol evidence any more than any other written contract; but where the bill of sale simply states that on a given day the defendant bought of plaintiff certain articles, at given prices, held, that it did not import a contract, but was simply declaratory of the fact, and that the defendant could show the true contract of the parties consistent with those written declarations by parol evidence. See, also, Hazard v. Loring, 10 Cush. 267; Atwater v. Clancy, 107, Mass. 369; Perrine v. Cooley, 39 N. J. Law, 449. In Millett v. Marston, 62 Me. 477, an order for fruit trees was addressed to plaintiff, and signed by defendant only. The order directed plaintiff to deliver to defendant, at a given place, a specified number of fruit trees, of the various kinds mentioned, the heights of some of them being mentioned, but no other specification as to size, for which de...