Hypes v. Morton

HAMILTON, J.

It is argued that the typewritten matter was without consideration and that the court should have charged the jury that that clause should not be considered by them. In considering this matter it will be noted that the essential difference of facts between the. parties is that the plaintiff claims the clause did not apply to the original contract. The defendant’s claim is that it did apply, for the reason that the original oral contract was on the basis of the written form contract, which contained the clause providing for the charging back for the cancelled contracts of advertising. The typewritten matter was therefore proper to be considered in determining what the oral contract was. It is hardly conceivable that the plaintiff would have signed such a statement had it conflicted with the terms of the oral contract. The court charged thq jury on this point as follows:

“That (typewritten matter) is offered in evidence and that language is to be considered for whatever bearing it may have on the question of whether or not this contract (oral contract) was just a straight commission without any charge backs.

You are to consider, of course, the other exhibits and all the evidence in this case, and determine from the evidence what the original agreement was, x x x x”.

The court in this language properly submitted the question to the jury, and limited the purpose of the consideration of the typewritten matter to any bearing it might have in determining the original contract.

We find no error in the record, prejudicial to the plaintiff in error, and the judgment is affirmed.

Cushing, PJ, and Ross, J, concur.