National Railways Advertising Company v. E. L. Bruce Company

• Decision Date: 05 April 1920
• Docket Number: 314
• Citation: 220 S.W. 48,143 Ark. 292
• Parties: NATIONAL RAILWAYS ADVERTISING COMPANY v. E. L. BRUCE COMPANY
• Court: Arkansas Supreme Court

220 S.W. 48

143 Ark. 292

NATIONAL RAILWAYS ADVERTISING COMPANY v. E. L. BRUCE COMPANY

No. 314

Supreme Court of Arkansas

April 5, 1920

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

1. The alteration of the contract was immaterial and made no change in the legal operation of the instrument, and the court erred in holding that they were material and vitiated the instrument. The alteration must be material. 1 Crawford's Digest, 99; 115 Ark. 606; 170 S.W. 1011. The words added made no change in the legal operation of the instrument.

2. The contract was not canceled. 188 F. 179; 68 S.E. 124; 56 Id. 313. The privilege of cancellation given appellee was a mere option and could only be exercised at the time specified. 82 Ark. 573; 135 Id. 573.

3. Appellee waived the right to cancel. 45 Ark. 37; 57 Id. 632; 64 Id. 213; 75 Id. 41; 83 Id. 306; 90 Id. 439; 94 Id. 443.

4. The court erred in finding that the installation of service was not to begin until notice from appellee. It is a plain attempt by the parties to alter the written contract by parol evidence, which can not be done. 99 Ark. 400; 102 Id. 575; 105 Id. 50; 112 Id. 165; 113 Id. 509; 125 Id. 219. The position of the court below is utterly inconsistent.

5. The court erred in permitting Bruce to testify that the contract was conditional upon other contracts between appellee and its customers. The contract speaks for itself and is complete and binding and parol evidence was not admissible. Supra. It also erred in allowing Bruce to testify that a sum in excess of $ 200 was named as the short rate monthly payment basis in the negotiations and that it was the custom to have a short time rate different from the long time rate. All negotiations were merged in the written contract and the addition of the words were not material. Custom must yield to a positive contract. 2 Sumner, 567; 5 Chamberlayne, Mod. Law of Ev., 4964.

Cockrill & Armistead, for appellee.

1. It is plain that appellant altered the contract and it was material. The parol evidence was admissible to aid in the interpretation of a written instrument. 17 Cyc. 664; 62 Ark 337; 81 Id. 389; 89 Id. 404; 27 Id. 510; 53 Id. 4.

2. The special meaning of words or terms used in commercial contracts may be shown. 105 Ark. 197; 106 Id. 400; 113 Id. 556. The giving of notice was properly proven by Bruce. The only measure of appellant's damage if the contract was wrongfully canceled, for a full or partial term, would be its actual loss, which could only be ascertained by letting the space to others and charging appellee with the difference. There was no error.

OPINION

SMITH, J.

On November 1, 1917, appellant and appellee entered into a contract, the parts of which material to the issues now before the court are as follows:

"This contract between National Railways Advertising Company (hereinafter called the company) and E. L. Bruce Company (hereinafter called the advertiser) witnesseth that the advertiser hereby authorizes and directs the National Railways Advertising Company to place his advertisement of flooring and other lumber merchandise (size of card 16x24 inches) in one-fourth cars of the Northwestern 'L' South Side 'L' for twelve months from November 15, 1917, for which the advertiser agrees to pay the sum of one hundred seventy-four and 24/100 dollars ($ 174.24) per month, payable at the end of each month, during the term of this contract. With privilege of cancellation at end of sixty days from beginning of installation of cards, at monthly payment basis."

The contract was on a printed form, and the last sentence quoted in the body of the contract was inserted in ink, the four final words having been written with a different pen and with different ink from those employed in filling out the remainder of the contract.

The court below held that these four words were written into the contract by the company's agent after its signing, and that they were material and vitiated the instrument. The correctness of this holding presents the controlling question in the case.

It is the insistence of the company that the addition of the words, "at monthly payment basis," if they were added after the execution of the contract, could make no change in the legal operation of the instrument, and that the only time when the advertiser could exercise the privilege of cancellation was at the end of sixty days from the date of the installation of the cards, and at that time the advertiser would owe for two months' service, and would have to pay for these two months, whether the words, "at monthly payment basis," were inserted or not, and that the sum to be paid was not controlled by those words. We adopt the designation employed in the contract in referring to the parties.

It appears that the contract was executed on one of the company's printed forms; but the provision in regard to its cancellation was written with pen and ink. This writing provided, not only the length of time notice of cancellation should be given, but what the terms of payment should be, if that right were exercised. The stipulation that the payment, in the event of cancellation, should be made at the monthly payment basis seems to imply that there was some other basis of payment. The body of the contract provided for a monthly payment of $ 174.24, but that price was upon the assumption that the contract would continue in force for one year; and if there was no different price per month, if the contract was canceled before the end of the year, then the words, "at monthly payment basis," were meaningless, and nothing was accomplished by their insertion.

But the advertiser says they were not in the contract when it was signed, and the court...