Montelius v. Atherton

• Decision Date: 01 April 1882
• Citation: 6 Colo. 224
• Parties: MONTELIUS v. ATHERTON.
• Court: Colorado Supreme Court

6 Colo. 224

MONTELIUS v. ATHERTON.

Supreme Court of Colorado

April, 1882

Appeal from County Court of El Paso County.

THE facts are stated in the opinion.

Messrs SLEETH and STAIR and Mr. T. A. McMORRIS, for appellant.

Mr. J L. WILLIAMS, for appellee.

BECK J.

This controversy arises upon the following contract of sale of a Mathushek piano, executed on or about December 5, 1878:

'This is to certify that I have purchased of W. W. Montelius, of Denver, Colorado, through agent, one style ten Math. piano manufactured by Math. Piano Co., price $315, to be delivered at Colo. Springs, free of charge, on the 10th day of December, 1878, or as soon thereafter as possible, without unnecessary delay; and I agree to pay for the same as follows: My promissory note for $310, due July 1, 1879, with interest at one per cent. per month; and I further agree that all title and property in said instrument shall remain in W W. Montelius' name until the whole amount be paid, and they shall have the right (should there be any default in said payments) to take possession of said property without first giving me any notice; and I further agree that all payments made shall apply as rent, commission and damages to said W. W. Montelius, in case this agreement is not fulfilled.

'P. O. address, Colorado Springs, Colo.

'Signature, JOHN F. ATHERTON.' 'This order is given on the following conditions, viz.: That at the request of the maker, I agree to exchange the said Math. piano, at the expiration of six months from date, for a No. 5 Hallett & Davis Square Grand, by the said maker paying $20 difference.

'W. W. MONTELIUS.'

The piano was delivered, and the note mentioned in the contract was given and paid at maturity.

The first error assigned is to the ruling of the court in permitting the plaintiff Atherton to testify that, after the execution of the contract, the plaintiff inquired of defendant how he should notify the defendant in case he wanted to make the exchange of pianos, and that defendant replied, 'drop me a line at any time at Denver.'

The objection is, that this was a contemporaneous verbal agreement which was merged in the written agreement, and that its admission was a violation of the rule that parol evidence cannot be admitted to contradict or vary the terms of a written agreement.

We do not think this objection well taken. The evidence did not tend to vary or change the terms of the contract in any manner. The defendant agreed to exchange pianos on request in a specified time, but the written agreement did not provide the manner in which the request was to be made. Defendant resided at Denver, the plaintiff at Colorado Springs. If the plaintiff spoke the truth, it was a part of the agreement that he should notify the defendant of his desire to exchange, by mail. The object of the parol testimony, therefore, was to establish a fact upon which the contract was silent, and for this purpose the testimony was admissible. Ball et al. v. Benjamin, 73 Ill. 39.

There was no error in refusing to charge the jury, as requested by the defendant's third instruction, that 'it was not sufficient that the plaintiff placed letters in the mail, notifying defendant that he desired an exchange of pianos.' It is a presumption of law that letters properly directed and duly posted reached their destination at the regular time, and were received by the person to whom addressed. Greenleaf on Ev. s 40; Breed v. First N. B. Central City, decided at present term. Post, 235.

If it be true that defendant directed the plaintiff to notify him by mail, such notice, if proven to have been properly given and in due time, was sufficient, or, if no provision was made for the manner of giving notice, and the jury should find as matter of fact that notice by mail was seasonably given and received, such notice would satisfy the conditions of the written contract.

But we are of opinion, upon the case as it is now presented, that the defendant has waived his right to object to both the sufficiency and the timely service of the notice. In his postal card of date June 30, 1879, to the plaintiff, the defendant says:

'I have received your letter, and am very much surprised that you do not like the Math. piano. I have written east regarding a Hallett & Davis for you; I expect to call on you soon; will write you again.'

The plaintiff's testimony was to the effect that he informed defendant by due course of mail, prior to the expiration of the six months, that he was dissatisfied with the piano delivered him, and desired to exchange for a Hallett & Davis but he received no reply. In his letter of June 21st, to which the above letter of defendant is a reply, plaintiff says he has already written defendant several times on the subject of the exchange, and can get no reply. It will be observed that defendant's letter does not dispute this statement. He did not then object, as he now does, that he did not receive notice of the desire to exchange within the time limited by the contract. On the contrary, he informed the plaintiff that he had written for a Hallett & Davis piano for him, thus tacitly admitting the receipt of the letters referred to, and the sufficiency of the notice. It cannot avail the defendant now to say that the letter of June 21st was the first and only letter he received from the plaintiff, and that when he answered it he was under the impression...