Opinion of the Court, the
Hon. George W. Wall, Judge.The appellee recovered a judgment against the appellant for §77.85 from which the latter has prosecuted its appeal to this court. The plaintiff’s claim was for commissions accrued and accruing upon sales of sewing machines manufactured by defendant. The defendant denied the alleged indebtedness and set up a counter claim against plaintiff for cash collected and not accounted for, machines sold and not accounted for, etc.
We shall not go into a statement of the facts nor need we refer to all the points suggested by counsel in their printed arguments.
We think the court erred in refusing to permit the defendant to explain the meaning of certain arbitrary signs and peculiar forms of entry appearing in the account books of defendant which were admitted in evidence. Without such explanation the books would be of little, if any, use.
We think also the court erred in assuming, by instructions given for plaintiff, and by modifying instructions asked by defendant, that the company had waived the clause of the written contract in regard to refunding sums received by plaintiff on reverted sales. As we read the evidence there was nothing upon which to base such assumption. From the evidence of the plaintiff it appeared that he relied upon the declarations of one Dewell, who was an agent of the company, supervising manager for the county, for authority to disregard that clause of the contract. It is provided by the contract that no agreements differing therefrom or outside of it should be of binding force until confirmed by the company’s agent in Chicago.
It appears that Dewell was the agent who employed the plaintiff and brought for signature this written contract, but he was not the agent in Chicago. It is claimed by plaintiff that he declared he would not insist on enforcing the clause in regard to the item in question. He says that he had this understanding from declarations made before and after the signing of the contract.
Whatever was said before was of course merged in the contract. We are inclined to believe from the entire evidence of plaintiff that this understanding, if any there was between him and Dewell,- occurred at the time the contract was signed and Avas really a part of the negotiations betAveen the íavo men.
The plaintiff’s testimony in chief Avas not very clear on the point, and on cross-examination he aauis asked, “Was not this talk at the time you signed it ? ” A. “After I signed, I asked him Avhat contract it Avas, and he says, Here it is, put your name to it.’ I said, What about this revert clause ? ’ He said, ‘ 1 don’t exact that from anybody.’ ” Considering all his testimony together we think this so-called agreement of Avaiver is to be regarded a part of the • negotiations which Avere merged in the contract. It meant, “ You sign this as it is written and I Avill not insist upon this clause,” and it Avas signed Avith that understanding. The effect is to contradict the writing by evidence of a contemporaneous parol agreement, which is not admissible.
It is urged, hoAveA'er, that the proof shows a subsequent agreement Avaiving this clause. The contract in terms provided that no outside agreement differing therefrom should be made unless confirmed by the agent in Chicago. This aauis a clear negation of the power of the agent, DeAvell, Avho presented the contract to the plaintiff, to make any such agreement.
It would not do to say that DeAvell might, by his OAvn declaration, establish his authority to set aside a clause of such importance. While it is true the company might Avaive this provision, the proof of Avaiver can not rest upon the barp assertion of an agent in conflict Avith the express terms of the Avriting, thereby overriding a proAÚsion which clearly shoAved he had not the power he assumed to have. To permit such proof Avould open a Avide door to fraud. Before it can be held that this clause has been waived it must appear that the acts of the company through its authorized agents have been such as should estop it from insisting upon the clause, and as we have just said, the company can not be bound by the mere declaration of DeAvell that he would not do so.
Manifestly he had no power to make such an agreement for the company, and we do not find that the company, by its acts through any authorized agent, is estopped to enforce the contract as written.
Complaint is also made by appellant as to the refusal of the court to give instructions number nine and ten. These instructions merely adióse the jury as to the meaning of the clauses in regard to note sales and lease sale—and no good reason appears why they should not have been given as asked. The clauses referred to are, however, quite clear, and it is difficult to see how a jury could misread them or reach a wrong conclusion because not advised as to their proper construction.
We can not, therefore, say that the case should be reversed for such refusal, but on another trial the court will no doubt obviate the complaint.
The judgment will be reversed and the cause remanded.