Edwards v. Standard Historical Society, Inc.

HAMILTON, J.

The bill of exceptions is in narrative form. The plaintiff at the trial offered the written contract as an exhibit, which was made a part of the record. Its witness testified to the balance due under the contract, and the refusal to pay. And thereupon, Mrs. Edwards, in her defense, testified as follows, as shown by the bill of exceptions:

“That she signed the contract in question on November 16, 1927 and that a man by the name of Dillinger agent of the plaintiff, sought her subscription to the Standard History of the World, that she responded that she had had a number of books as well as a set of the History of the World and that she was not interested. That he stated that if she would give a testimonial of the books, that he would give her the books as a gift; to which she responded that she was too busy and wanted no further books. That thereupon he stated, “You would accept a gift, would you not?” and thereupon showed her a list of people who had given a testimonial. He further said, “You can give this to some of your friends or relatives”. That defendant answered, “Well, I probably could do that if it is to cost me nothing”. That there-' upon she signed the contract on that condition. The contract was signed. Before he left, the agent said, “When the books come you will write a testimonial and we will present them as a gift to you” and she answered “that she would; that she was willing to give this testimonial” and that a short time thereafter the books were delivered in a box and have been unopened ever since. That shortly thereafter she was called on the telephone asking her to make payments and when she answered that she was to have the books free for a testimonial, they answered denying that they would recognize such ,an agreement, but insisted upon her monthly payments and therefore she did not write a testimonial but requested them to come and get the books. That they never came to get the books.”

Mr. Edwards, the husband of the defendant, testified as to the refusal to pay the account, and that the books were in the original package not opened, and made tender of the books back to plaintiff.

Another witness for the defense testified she heard the use of the word “free” by the salesman, but in what connection she did not hear.

The important clause in the written contract order is as follows:

“Standard Historical Society, 528 Walnut Street, Cincinnati, Ohio.

You may enter my order as hereunder for which I agree to pay $59.50 as follows: $5.00 with order and $5.00 each month thereafter until I shall have paid $59.50 in all. Date, November 16, 1927.”

Indorsed on the contract is:

“Date, Nov. 16, amount received, $5.00, Collector Dillinger.”

Mrs. Edwards testified that she gave the order with the understanding that she was to have the books as a gift, provided she would give a favorable testimonial. It is impossible to reconcile the proposition that she was to have the books as a gift with the undisputed payment of $5.00 upon signing the contract. She makes no denial of the payment of $5.00. Her evidence is not sufficient to overthrow the express terms of the written contract.

The judgment of the court of Common Pleas, affirming the judgment of the Municipal Court, will be affirmed.

Cushing, PJ, and Ross, J, concur.