Haddaway v. Post

Thompson, J.,

delivered the opinion of the court.

This action was commenced before a justice of the peace, to recover damages for the breach of a contract, whereby the defendant undertook to furnish anthracite ooal to the plaintiff, as hereafter stated. Two off-sets were pleaded by the defendants, which it is not necessary to notice, because no question is raised concerning them.

On trial anew in the circuit court the verdict of the jury disposed of the issues on the complaint and upon each of the off-sets, and awarded a balance to the plaintiff, for which judgment was entered. From this judgment the defendant appeals.

It appeared in evidence that the plaintiff was a coal dealer in south St. Louis, commonly called Carondelet; that an assistant quartermaster of the United States army advertised for proposals for furnishing hard and soft coal to the garrison at Jefferson. Barracks ; that the plaintiff, desiring to bid for the contract in conformity with this advertisement, went to the defendants and negotiated with them a contract whereby they agreed, in case he should be the successful bidder, to furnish him all the anthracite coal at the prices and under the conditions hereafter set out in the contract itself. The plaintiff became the successful bidder, and the contract was drawn up on one of the printed blanks used by the defendants in their coal contracts, and was signed by both parties. The written portion of the contract as thus signed was as follows:

“ St. Louis, April 7, 1886,.

“We propose to furnish to W. S. Haddaway for government contract at Jefferson Barracks anthracite coal in such quantities as are set forth in government proposal.

“Chestnut and stove f. o. b., E. St. Louis, in car lots at $5.85 per ton. Egg f. o. b., E. St. Louis in car lots $5.60 per ton, such prices to hold for the period of one year from the time of letting of said contract, the said W. S. Haddaway binding himself to purchase all anthracite coal for said contract from us.

“ Post & Hart.

“W. S. Haddaway.”

Underneath the signatures were the following-words, printed in plain letters: “Prices named are subject to conditions on the back of this letter.” On the back of the paper was the following printed matter:

“terms cash.”

“1. The prices named in this letter are for coal to be shipped direct from the mines. When ordered shipped from our yards there will be an additional charge for loading.

‘ ‘ 2. Coal will in all cases be sold at invoice weights, as weighed and way-billed at the place of shipment.

“ 3. Cars are required to be unloaded in accordance with the rules and regulations of the railroads, and demurrage will be charged for detention.

‘ ‘ 4. Coal shipped on board cars at the mines will be thereafter, in all respects, at the risk of the purchaser.

‘ ‘ 5. While every effort will be made for the prompt and satisfactory delivery of all orders, we will not be responsible for the "loss of coal en route, or for damages sustained in consequence of delays in transportation, transfers, accidents, strikes among employes of coal or transportation companies, or for any other cause beyond our control.

“Prices named in tliis letter are not guaranteed, till orders have been received and accepted.”

The evidence showed, and this is not disputed, that the defendants failed to comply with their contract by furnishing the anthracite coal to the plaintiff as fast as required by him to fill his contract with the government. The excuse which the defendants set up for this failure is founded on the fifth paragraph of the printed matter on the back of the paper on which the contract was written. Against the objections of the defendants, the court allowed the plaintiff to read to the jury the written portion of the paper, without requiring him to read the printed portion, and afterwards excluded the printed., portion when offered in evidence by the defendants.1Against the ruling of the circuit court, the defendants appeal to the rule that in interpreting a written contract it is to be read by its “four corners,” as it is sometimes said, where the effect is to include some portion on its face outside of the signatures ; or by its “eight corners,” 'as it is sometimes said, where the effect is to turn it over and include in it something endorsed on its back which is also outside of its signature. This principle has been chiefly applied with reference to negotiable instruments, as will be seen by the following cases, all of which were cases of that character: Farmers' Bank v. Ewing, 78 Ky. 264; S. C., 39 Am. Rep. 231; Polo Man. Co. v. Parr, 8 Neb. 379; S. C., 30 Am. Rep. 830; State v. Stratton, 27 Ia. 420; S. C., 1 Am. Rep. 282; Costelo v. Crowell, 127 Mass. 293; S. C., 34 Am. Rep. 367; Wait v. Pomeroy, 20 Mich. 425; S. C., 4 Am. Rep. 395; Wheelock v. Freeman, 13 Pick. [Mass.] 165; S. C., 23 Am. Dec. 674; Heywood v. Perrin, 10 Pick. [Mass.] 228; S. C., 20 Am. Dec. 518; Tuckerman v. Hartwell, 3 Greenl. [Me.] 147; S. C., 14 Am. Dec. 225. The same principle, in respect of memoranda written on negotiable instruments outside of the signatures, has been ruled in many other cases, as is shown by the editor’s note to the case last cited. 14 Am. Dec. 232. In Missouri Pacific. Ry. Co. v. Levy, 17 Mo. App. 501,this principle was applied with respect to an endorsement on a promissory note respecting the consideration of the note. The principle has been applied with such strictness that if matter so added to a negotiable instrument outside of the signatures is cut off, it avoids the instrument (Wait v. Pomeroy, 20 Mich. 425); and if it is done with felonious intent it is indictable as a forgery. State v. Stratton, supra.

The learned counsel for the plaintiff seeks to avoid the application of this principle to the present case on several grounds. One of these is that the cases in which the principle was asserted were cases of negotiable instruments. But we apprehend that counsel is in error in supposing that the principle is confined to negotiable instruments, although it may, of course, have a different operation when applied to a negotiable instrument from that which it will have when ap plied to another kind of contract. In the case of Williams v. Handley, 3 Bibb. [Ky.] 10, a case which has been much cited in support of the rule, the instrument was a deed, and not a negotiable instrument. There can, in the nature of' things, be no reason for restricting the operation of the principle to one kind of written contract a.nd denying its operation in respect of another kind of written contract.

Another ground on which we are asked to deny the operation of the rule in this case is that, in the cases cited in support of the rule, the rule has been applied in respect of written endorsements and not in respect of printed endorsements ; and a class of cases relating to the contracts made between common carriers and shippers is cited to show that the rule would not be applicable to matter printed upon contracts. We apprehend that there is no general rule, or rather no exception to the general rule, which will exclude printed matter from the operation of the rule. The cases which arise upon contracts made with public carriers are scarcely applicable because such carriers are acting in the discharge of a duty imposed upon them by public law; their contracts do not hence stand on the precise footing of contracts between two private parties who are freely at liberty to make any contract they choose; but the courts exhibit a tendency so far as possible to prevent them from relieving themselves by printed stipulations in contracts with shippers from the liability which the law imposes upon them ; and accordingly it is a well understood rule that the burden is upon the carrier to show that a knowledge of the contents of the printed matter was brought home to the shipper. But we think it would be to use a misleading analogy if we were to endeavor to extract from what the courts have decided with reference to contracts between carriers and shippers a rule for the government of such a case as the one now before us. In the case of Farmers’ Bank v. Ewing, 78 Ky. 264; S. C., 39 Am. Rep. 231, the matter which was held to be a part of the contract was matter printed upon the back of a promissory note. That case was cited with approval by the Kansas City court of appeals in Missouri Pacific Ry. Co. v. Levy, 17 Mo. App. 501, 505. If it was well decided—and we think it was—it shows that the operation of the rule cannot be restrained so as to exclude merely printed matter. See also Penniman v. Hartshorn, 13 Mass. 91; Merirtt v. Clason, 12 Johns, 106; Platt v. Smith, 14 Johns, 368; Reed v. Drake, 7 Wend. 345; 2 Kent Com. 511.

A third ground on which it is reasoned that this case ought to be taken out of the general rule above stated is, that it is a principle resorted to in the interpretation of contracts which are partly in writing and partly in print, that where a repugnancy exists between the printed and the written matter, the written portion must control. This is undoubtedly the rule, and this rule finds frequent application in the interpretation of policies of insurance. We have more difficulty in dealing with this view of the case than with any other. We deal with the question in this aspect only as regards the fifth clause printed upon the back of the contract, because the defendants do not seek to defend under any other clause. At first blush it does seem that there is a repugnancy between the written portion of the contract and this fifth clause. By the written portion the defendants agree to furnish to the plaintiff, for a government contract, anthracite coal in such quantities as are set forth in a government proposal. This ■ charges them with knowledge of the purpose of the contract, and, so far as material, incorporates the government proposal into this contract. It shows that they knew that, under the terms of the government contract, the plaintiff would be obliged to furnish to the government a certain definite quantity of coal, which might be increased or diminished to a certain extent, under the terms of that contract, in the discretion of the contracting officer of the government. On the other hand, in the concluding portion of the written part of the contract the plaintiff binds himself to purchase all anthracite coal for the government contract from the defendants. This seems to be entirely repugnant to the idea that they can excuse themselves from delivering the amount which the plaintiff may require to fill the government contract, by reason of strikes or the causes mentioned in the fifth clause printed on the back of the paper. But on the other hand, it may be said thatit will be just as necessary for them to have protection against the liability which they might otherwise incur by reason of the circumstances mentioned in this fifth clause, in this case as in any other case where they should engage to furnish anthracite coal deliverable on the cars. Of course the plaintiff’s obligation to purchase from them all the coal necessary to All the government contract would be discharged whenever they •should not be in a position to d eliver it to him ; so that, in working out the contract according to the terms of the written and printed matter taken together there, would not necessarily be any difficulty.

Moreover, it is to be said that this contract was made by business men with their eyes open. When the plaintiff put his name to it he saw that it was drawn upon a paper which had printed matter upon it, and his attention was called to the printed matter by words on the face of the contract printed in conspicuous type. There is no reason founded in public policy, such as obtains in the case of contracts between carrier and shipper, where the parties stand on an unequal footing, and where one is, so to- speak, at the mercy of the other, — -why this contract should not be interpreted by ordinary rules. It must, we think, be assumed that, in , Í using this blank form on which to draw their contract, ! i the parties intended that the printed matter should form a part of it. Such is the principle of the cases cited, and we see no reason why this case should be taken out of the rule.

This view disposes of this appeal so far as to render it unnecessary to notice the other assignments of error ; for they relate to rulings which sprang out of this ruling, and which will hence not be made on another trial.

For the error of excluding the printed matter of ( this contract from evidence, the judgment will be reversed and the cause remanded.

All the judges -concur.