Southern Street Railway Advertising Co. v. Metropole Shoe Manufacturing Co.

Briscoe, J., delivered the opinion of the Court. The declaration in this case contains the common counts, and one setting forth a special contract between the plaintiff and defendant. The defendant, in addition to the general issue pleas, filed a plea on equitable grounds to this effect; “ that the paper-writing, on which suit is brought, is not the contract of defendant, and that said paper-writing was not intended to create, and did not create, any legal relationship-whatsoever; that said paper was signed by the defendant upon the request of the plaintiff’s agent, in order that the plaintiff or its agents might show the same to other persons dealing with the plaintiff, in order to induce such other persons to pay the rates for advertising mentioned in the contract, and that it was distinctly understood that the papei'-writing was hot a contract between the parties thereto, and that the bringing of a suit thereon is a fraud upon the defendant; that the only real contract between the parties was a parol ⁶⁷ contract for certain advertising for which the defendant was to pay three hundred dollars ($300), which sum has been fully paid by the defendant.” At the trial, issue was joined on the replication to the equitable plea and to the general issue pleas. There were ten exceptions reserved at the trial.

All of these relate to the rulings of the Court upon the admissibility of testimony, except the tenth, which contains the Court’s ruling on the prayers. The contract is in writing and dated the 26th of March, 1898, and it authorizes the appellant to insert the advertising cards of the appellee in 500 cars in Baltimore for a term of twelve months, commencing April 9th, 1898, in consideration of the payment of the sum of three hundred dollars per month, payable at the end of each month during the term of the contract. The appellee reserved the right to cancel the contract at the expiration of three months by giving thirty days’ written notice. It also provides that no verbal conditions made by agents will be recognized.

Every condition must be specified on the face of the contract. The contract was signed by the vice-president of the plaintiff company and by the president of the defendant company and subsequently approved by the plaintiff company. The contract contains other stipulations and reservations, but as the contract will appear in its entirety in the report of the case, it will not be necessary to set it out in detail in this opinion. It is conceded that the ten bills of exception practically present but one question and that is, whether parol testimony is admissible to show that the written paper, the cause of action in this case, was never intended as a contract, nor as the binding record of the contact between the parties.

The rule against parol evidence to vary or contradict the terms of an agreement in writing is well settled by the Courts. It is earnestly insisted upon the part of the appellee, that this rule has no application to this case, because the testimony was offered, not for the purpose of varying or contradicting the contract, but to show that the parties to ⁶⁸ the writing never intended it to be a contract or as the binding record of a contract. We think the Court below was right in admitting the evidence. In the case of Leppoc v. Nat.

Union Bank, Garnishee, 32 Md. 144 , this Court said: “ The rule which excludes parol or verbal evidence to affect that which is written, was not at all infringed by the admission of such evidence to show that the instrument was void or that it never had any legal existence or binding force, for want of due delivery and acceptance.” And to the same effect are the cases of Davis v. Hamblin, 51 Md., 525 , and Harrison v. Morton, 83 Md. 456 . In Pym v. Campbell, 6 El; & Bl. 374, it is said: “The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible.” This rule is sustained by the Courts of England, in the following cases :. Rogers v. Hadley, 2 H. & C. 249; Lister v. Smith, 3 Swabey & Tristram, 282; Nichols v. Nichols, 2 Phillimore, 180; Pattle v. Hornibrook, [1897] 1 Ch. 25. And the Supreme Court of the United States in the recent case of Burke v. Dulaney, 153 U. S. 234 , reviews the cases upon this subject both in this country and England, and Mr. Justice Harlan, speaking for that Court, said : “ The rule that excludes parol evidence in contradiction of a written agreement presupposes the existence in fact of such agreement at the time suit is brought.

But the rule has no application if the writing was not delivered as a present contract, and parol evidence was admissible to show that there never was any concluded, binding contract entitling the party who claimed the benefit of it to enforce its stipulations.” We content ourselves, therefore, by a reference to some of the authorities supporting this view in addition to those already cited. Ware v. Allen, 128 U. S. 590 ; Adams v. Morgan, 150 Mass.