Allen v. Sowerby

When a motion to Dismiss an Appeal will be overruled. — Admissibility of Parol testimpny, to Vary or modify a dimple Contract in writing. A motion to dismiss an appeal upon the ground that the bills of exception were not prepared and submitted to the Court below in conformity with one of its rules, during the term at which they were taken, will be overruled, there being nothing in the record to show that they were not submitted at the same term at which the cause was tried. In case of a simple contract in writing, it is competent to prove by parol, a distinct subsequent agreement, waiving, abandoning or modifying the terms of the writing, or an additional, suppletory agreement, supplying something which is not in the written contract. Where in an action of assumpsit to recover for services rendered, the plaintiff offers in evidence, as constituting the contract between himself and the defendant, a letter written by the latter, which per se does not purport to be a full and final contract between them in regard to the matter referred to therein, but a partial agreement as to certain commissions to be allowed the plaintiff, it is competent for the defendant to show by parol testimony that after the writing of the letter, he prepared and read to the plaintiff a contract in writing, which embodied the agreement between them in accordance with their previous understanding, and that he assented to it as correctly embodying the bargain between them, but refused to sign it, because, as he said, he would not bind himself in writing to any body. And such unsigned written agreement may properly be submitted to the jury with the other evidence.

Appeal from the Baltimore City Court. This was an action of assumpsit by the appellee’s intestate, against the appellant to recover the sum of $201.92, claimed to be due upon a contract alleged to have been made between them. The alleged contract was a letter from the defendant to the plaintiff, dated New York, July 13th, 1868. First Exception. — The plaintiff to sustain the issue on his part, proved that prior to the 13th July, 1868, he had been employed by the defendant as solicitor of policies for the Union Mutual Life Insurance Company of Maine, of which the defendant was the resident principal agent in and for the city of Baltimore and State of Maryland, at a flat commission of 20 per cent, on the first premiums thereon; that some time previous to the 13th July, 1868, plaintiff notified the defendant that he must have a higher rate of compensation if he continued to work for the company, and that the parties had a conversation on the subject without coming to any definite conclusion, in which the plaintiff stated to the defendant that he should require 25 per cent, on the first year’s prem'ams on all policies he might procure in future, and 5 per cent, on all renewals the second and third years — the same that he was already getting in other companies; that defendant informed plaintiff that he was going to New York on the 3rd July, 1868, and would write to him thence on the subject; that in July, 1868, while the defendant was in New York, plaintiff received by mail from the defendant the following letter, addressed to the plaintiff' at Baltimore, in the defendant’s handwriting, viz: New York, July 13th, 1868. J, A. Sowerby, Esq., Bear Sir: — Mr. Crocker, our President, has arrived in Boston; he did not stop here as expected; he returned by the way of Albany, New York. I shall go to Boston on Wednesday night, with a view to get my new' weekly plan in working shape. In the meantime, with a view that there may be no time lost, I will here say, that I will accept your proposition in reference to corns., viz: 25 per cent, on all original prems. procured by or through you, and 5 per cent, renewals for two years. I will enter into a contract in writing on my return. I shall expect a large number of applications from you, and trust the arrangement may result to our mutual advantage. You can have the application that you have procured sent to Boston for policies. I shall be home at the earliest moment. The above has no reference to corns, for my new weekly plan — that I am not prepared to speak definitely of to-day. Give my kind regards to all. I am yours truly, W. A. Allen, (U. S. Stamp, 5 cents — 14 July, 1868.) Agent. That shortly after the receipt of the said letter, the plaintiff caused the 5 cent internal revenue stamp to be affixed to it, which now appears upon it, and with the marks of cancellation thereon appearing, and proceeded to act under the terms of the said letter; that not long after the defendant’s return to Baltimore from New York, some time, he thought, in the month of July, the said defendant offered to enter into a written contract with the plaintiff, specifying the terms of their agreement, but the plaintiff declined to do so, saying to the defendant, “ Your letter is as good a contract as I want, or good enough for me; I rely on your letter and your honor as to the terms of our agreement;” that defendant still urged on plaintiff to enter into the written contract, and offered to read to him a contract, which he produced and said he had entered into with another man, and offered to read the same to him, but the plaintiff declined and refused to hear it, on the ground of the sufficiency of the letter from the defendant, and his unwillingness to vary its terms; that he did not enter into any other or new contract, but proceeded to act, and did act entirely under the terms contained in said letter; and that the plaintiff solicited and procured for the company represented by the defendant the applications for the several policies of insurance — seven in number — the gross amount of annual premiums amounting to $2,700, which are set out in the account filed with the declaration in the case. On the part of the defendant it was admitted that the plaintiff as stated by him, had been previously employed as canvasser by the defendant; that the prior conversation, as stated by the plaintiff, had occurred between them, and that the letter of the 13th July, 1868, was his genuine letter, but the same was objected to as evidence by the defendant. The Court overruled the objection and admitted the letter. The defendant offered to prove by his own testimony, that after his return to Baltimore from New York, he had an interview with the plaintiff; that he had then prepared and read to the plaintiff a contract in writing, which embodied the agreement between them, in accordance with their previous understanding on the proposition of the plaintiff referred to in the letter, and this contract so offered and read, was proffered in evidence; that the plaintiff, on hearing such contract read, assented to it as correct and as embodying their understanding, but refused to sign it because he said he would not make a written bargain and bind himself to anybody, but then proceeded to render some service under that agreement, and that all the services alleged to have been rendered, and for which he seeks to recover, so far as they were rendered at all, were rendered under such oral agreement, and not under the agreement of the letter produced in this cause; to the admissibility of which evidence, as tending to vary the written contract between the parties already offered in evidence by the plaintiff’, the plaintiff objected, and the said paper-writing so prepared by the defendant not having been submitted to the Court for its inspection before the same was offered to'the jury, the Court (Scott, J.,) sustained the objection, and the defendant excepted. Second Exception. — Substantially the same as the first.' Third Exception. — The defendant testified, that when he first saw the letter of July 13th, 1868, there was no internal revenue stamp attached to it, and further offered to prove, by his own testimony, that on the refusal of the plaintiff to sign a written contract similar to one he had prepared for another man, he offered to make a parol contract with the plaintiff variant from that contained in the letter, but under which the 25 per cent, commission on first premiums was allowed by him to the plaintiff; but the plaintiff failed to perform certain conditions on his part to be performed, as set forth in said contract, and upon such failure defendant refused to allow the 5 per cent, on renewals, To this evidence the plaintiff objected, and the Court sustained the objection, and the defendant excepted. The defendant thereupon prayed the Court to instruct the jury, .that the letter produced in evidence by the plaintiff is not a contract in the law which could not be changed by a subsequent parol agreement; and if they are satisfied from the evidence that the letter written by the defendant, and offered in evidence by the plaintiff, contained a provision, that “in the meantime” (that is, until a written agreement should be made and entered into between the parties) the arrangement contemplated by that letter was to continue, and might then be superseded by such subsequent agreement, then it was competent for the plaintiff and defendant to make such subsequent agreement, and the same, if made, would be binding upon the parties in place of that contained in the letter. This instruction the Court refused to give, because there was no evidence in the case to sustain it, and the defendant excepted. Fourth Exception. — This was taken to the rejection of a prayer offered by the defendant, identical with that contained in the previous exception. The verdict and judgment being for the plaintiff, the defendant appealed.