Hallowell v. Lierz , 37 W.N.C. 277 ( 1895 )

Opinion by

Mr. Justice Gbeen,

The defendant resists payment of the plaintiff’s claim because he says the plaixxtiff’s agent pi’omised to send him two theatre tickets every week, and said that he could change his advertisement whenever he wanted to. This was not contained in the written contract and the defendant testified that when he called the attention of the agent to the omission, the latter replied that he was the “ boss of the programme,” arxd “ I am the man who is running this business.” It is apparent therefore that the omitted part of the contract was not left out of the instrument by any mistake, or by any fraud. The defendant knew it was not in before, and at the time, he signed it, and he accepted the agent’s assertion that he was the “ boss ” as a sufficient provision for the absence of the omitted term of the contract. But the contract contained on its face in plain words a positive notice that “ the publishers are not bound by any agreement other than that expressed on the face of this contract,-” also the words “No verbal agreement recognized.” And the contracting parties were.“Hallowell & Co., Publishers,” and “ Henry Lierz.” The contract was a direction to Hallowell & Co., signed by Lierz, to insert his advertisement in the National Theatre Programme for forty weeks at two dollars a week. The defense was that the agent who made the contract said he was the “ boss of the programme,” and that he agreed to send the defendant two theater tickets weekly and that the defendant might change his advertisement whenever he wished, nothing of which appeared in the contract, and the whole of which was supported only by the oath of the defendant and flatly contradicted by the other party. To allow such a defense to prevail against such a contract, and in the circumstances stated by the defendant, would be simply to revolutionize the law as to the alteration of written instruments by parol as it has been settled by all our modern cases. In Thomas v. Loose, 114 Pa. 85, we refused to permit just such a defense to be made to a written contract, which contained a similar notice to the one appearing on this instrument. In an elaborate opinion by our late brother Tiujnkby the whole subject was reviewed carefully, and the judgment was reversed because the court below had permitted the parol testimony to go to the jury in circumstances very like the present. The assignments of error are all sustained.

Judgment reversed and new venire awarded.