Pictorial League v. Nelson

• Decision Date: 31 October 1896
• Citation: 69 Vt. 162,37 A. 247
• Parties: PICTORIAL LEAGUE v. NELSON.
• Court: Vermont Supreme Court

37 A. 247

69 Vt. 162

PICTORIAL LEAGUE

v. NELSON.

Supreme Court of Vermont. Chittenden.

Oct. Term, 1896.

Exceptions from city court of Burlington Russell, Judge.

Action by the Pictorial League against Henry J. Nelson, tried by the court without a jury. There was a judgment for defendant and plaintiff appeals. Reversed and remanded.

Powell & Powell, for plaintiff.

R. E. Brown, for defendant.

ROSS, C. J. The action is to recover for cuts furnished in accordance with a written contract dated April 24, 1894, and for a breach of the contract by the defendant. The contract is in the form of an order, and is as follows "The Pictorial League," etc. "Gentlemen: Please furnish the undersigned with one cut and reading matter semimonthly to illustrate the furniture and draperies business in the city of Burlington, state of Vermont, only, for the term of one year from commencement, for which I agree to pay to your order, at New York, the sum of one dollar and postage for each cut, at the end of the month," etc. This order was signed by the defendant. The order was procured by an agent of the plaintiff. On the margin of the order was the following: "The holder of this blank is authorized to receive orders for the Pictorial League. The proprietors are not responsible for any agreements not appearing on the face of this contract." This was signed by the proprietors and agent. The plaintiff mailed the defendant four cuts, which he refused to use, and directed them to cancel his order. This order is a written contract on the part of the defendant, which could not be enlarged, varied, nor contradicted by parol testimony of what transpired at the time of its execution. Daggett v. Johnson, 49 Vt. 345.

Against the plaintiff's exception, the defendant was allowed to give evidence tending to show that upon the occasion of giving the order, and before it was given, the agent represented that there would be sent by the plaintiff to the defendant, each time, before the cut was sent him, a sample sheet containing not less than ten samples, from which he could select one, and the cut for that sample would then be sent to him; that the plaintiff did not perform this representation of the agent, but sent cuts which the defendant did not want, and which were inferior to the sample exhibited by the agent. This was error. It was allowing a further stipulation resting in parol, made contemporaneously, to be added to the written contract. The order does not specify the quality...