now allows the defendant to be contradicted 2 Taylor's Ev., § 1437; Best Ev., § 130; Stephen's Dig. of Ev. art. 130; Ward v. Sinfield, 49 L. J. (C. B. D.) 696.

And also those in some of the United States, as in Wisconsin (Rev. Stat. of 1878, § 4073), see Ingalls v. State, 48 Wis. 647; New York (Civil Code, § 832); People v. Kelly, 35 Hun, 295, 304; People v. Hovey, 29 id. 382, 390.

If without producing the record, the defendant is asked whether he has ever been convicted, and he answers without exception, or does not insist upon the production of the record, he cannot afterward raise the question of his privilege. People v. Reinhart, 39 Cal. 449; Root v. Hamilton, 105 Mass. 22; State v. Rockett, 87 Mo. 666; Hanoff v. State, 37 Ohio St. 178; Perry v. People, 86 N. Y. 353; South Bend v. Hardy, 98 Ind. 577; see People v. Crapo, 76 N. Y. 238, 290 (Church, C. J.); State v. Damery, 48 Me. 327.

The defendant, after the record has been admitted, cannot countervail it by offering to prove his innocence of the offense of which he thereby stands convicted, State v. Watson, 65 Me. 74; Com. v. Gallagher, 126 Mass. 54: Gertz v. Fitchburg R. Co., 137 id. 77; Gardner v. Bartholomew, 40 Barb. 325; see Driscoll v. People, 47 Mich. 413; Com. v. Feldman, 131 Mass. 588; Sacia v. Decker, 10 Daly, 204; Com. v. Ervine, 8 Dana, 30; except in case of a foreign conviction, Sims v. Sims, 75 N. Y. 466; nor can a pardon be contradicted, Hester v. Com., 85 Penn. St. 139; Jones v. Harris, 1 Strobh. 160.

Where a convict is brought from a State prison to testify, and does testify, the fact that his reputation for truth and veracity at the time of and previous to nis sentence was bad, may be shown. Hamilton v. State, 34 Ohio St. 82; see Ranken v. Com., 82 Ky. 424; Johnson v. Com., 2 Gratt. 581

If after serving a sentence, a convict testifies and admitting that fact, alleges a reformation, such allegation cannot be disproved. Conley v. Meeker, 85 N. Y. 618; People v. Amanacus, 50 Cal. 233; see Gertz v. Fitchburg R. Co., 137 Mass. 77; Curtis v. Cochran, 50 N. H. 242.

A charge or sworn complaint before a justice of the peace is inadmissible as evidence on another trial to discredit the defendant therein named, West v. Lynch, 7 Daly, 245; McKesson v. Sherman, 51 Wis. 303, 311; see People v. Clark, 102 N. Y. 735; State v. McKennan, Harp. 302; State v. Hannett, 54 Vt. 83; or the justice's docket, State v. Gaffney, 56 Vt. 451; Coble v. State, 31 Ohio St. 100; see Spalding v. Low, 56 Mich. 366; Beemer v. Kerr, 23 U. C., Q. B. 557; or proof of an arrest, People v. Crapo, 76 N. Y. 288; People v. Elster, (Cal.), 5 Crim. Law Mag. 687; Gale v. People, 26 Mich. 157; Stout v. Rassel, 2 Yeates. 334; see Commonwealth v. Bonner, 97 Mass. 587; People v. Hovey, 29 Hun, 382; People v. Brandon, 42 N. Y. 265; or of an effort to evade an arrest, Moore v. State, 68 Ala. 360; see Ryan v. People, 19 Hun, 188; 79 N. Y. 593; State v. Schaffer, 70 Iowa, 371; Smith v. State, 58 Miss. 867; State v Starnes, 94 N. C. 973.-JOHN H. STEWART.

tract, and parol evidence is not admissible to show that the subscribing party contracted as agents, and not as principals.

APPEAL from Common Pleas Circuit Court, Charles

county. The opinion states the case.

MCGOWAN, J. This was an action against the defendants Cramer & Blohme for $1,138.70, damages sustained upon a lot of shelled corn, in sacks, purchased from them by the plaintiffs on May 17, 1884. The following writing was offered as the written contract of the parties:

"May 7. Sold H. Bulwinkle & Co.

At the time the purchase was made the corn was not in the city; but soon after, about the last of May or first of June, the schooner May Williams reached Charleston with the corn. Upon its arrival in the harbor the plaintiffs were notified of the fact. Mr. Hasloop, one of the plaintiffs, went down to the vessel, and finding about 150 sacks out, examined the corn in two or three of them, and found that "it seemed good." On June 4, before all the corn was out of the vessel, the defendants presented their account for the corn, $4,400.45. The odd certs were paid, and the plaintiff gave their note as follows:

sur

A few days after the note was given, in removing the corn, it was discovered that some of the sacks were damaged. Immediate notice was given to the defendants, but as they refused to correct the matter, or to have any thing to do with it, the corn was veyed" by two gentlemen at the request of the "Merchants' Exchange," and 1,470 sacks were found to contain corn in "a damp, blue-eyed and musty condition." This damaged corn was sold at auction, and brought less than the price of good corn of the same kind by $1,138.70. In the meantime, and before the note fell due, the defendants transferred it, and as the defense of unsoundness of the corn could not be made to it in the hand of an innocent holder before due, the plaintiffs paid it, and brought this action for the damages sustained.

The cause came on for trial before Judge Kershaw and a jury. A witness, one of the defendants, was asked whether they (the defendants) contracted in their individual capacity, or in what capacity. The plaintiffs objected to the question, claiming that parol testimony could not be offered to alter the written contract. The judge admitted the parol evidence, saying: "I do not regard this paper, which is a mere memorandum of contract taken down at the time, as precluding testimony as to the conversation between the parties which might in any way throw light on the contract they were making. If these parties knew from any source, at the time that the paper was made, that they were actually dealing with the defendants as agents, I think it can be shown as part of the res gestæ," etc. The testimony being admitted, the jury, under the charge of the judge, found for the defendants.

The plaintiffs appeal upon the following exceptions: (1) That his honor committed error in ruling that the paper or contract sued on was a mere memorandum of contract, and did not preclude testimony as to conversations between the parties which might in any way throw light on the contract, or the nature of the contract, they were making, and that the plaintiff knew from any source at the time the paper was made, that they were dealing with the defendants as agents, it could be shown as part of the res gesta. (2) Because his honor ruled that if in this case there was a clear understanding between the parties that defendants were acting as agents, such understanding was not excluded by that paper. (3) Because his honor admitted parol evidence on behalf of the defendants, after objection thereto, as to conversations between the parties tending to throw light on the contract, or nature of the contract, they were making. (4) Because his honor admitted parol testimony, on behalf of defendants, tending to show that the defendants were dealing as agents, and not as principals, in signing the written contract sued on by plaintiffs. (5) Because his honor admitted parol testimony, on behalf of defendants, tending to show in what character defendants were contracting, whether as agents or principals, when they signed the contract or writing sued on, and put in evidence by plaintiffs. (6) Because his honor erred in instructing the jury as follows: 'If the jury find that the defendants, or either of them, signed the written contract offered in evidence by the plaintiffs, they are personally bound by said contract, unless it was distinctly understood by both parties that the defendants were not to be personally liable for defects in the article purchased.'

We agree with the Circuit judge that in this State, as to personal property, the rule of law is that "sound price requires sound property," and the contract for the corn must he read as if these words were added, "corn warranted to be sound.". A part of the corn turned out to be "unsound," and it would seem that the plaintiffs are entitled to redress on the warranty, unless they in some way waived their rights. Something was said in the case about the plaintiffs' having accepted the corn for themselves after an examination, but as there is no reference to that subject in the exceptions, the matter of course is not now before

us.

As we understand it, the sole question in the case is as to who is liable-whether the defendants, who sold the corn, signed the agreement, and took the note of plaintiffs, and realized upon it in their own name, had the right at the trial to introduce parol testimony tending to show that they were not acting as principals, but as agents of Robert Turner & Son, of Baltimore, and the contract of plaintiffs having been made with Turner & Son through them, they are not liable individually. The question as to the admissibility of the evidence seems to have been considered in two aspects: First, whether the paper offered as the agreement was such a contract in writing as to be within the rule which excludes parol testimony; and if so, second, whether the judge erred in charging the jury "that the defendants were not liable if it was distinctly understood by both parties that the defendants were not to be personally liable for defects in the article sold."

All the authorities agree, that as a general and most inflexible rule of evidence, "whenever written instruments are appointed, either by the requirements of the law, or by the compact of parties, to be the depositories and memorials of truth, any other evidence is excluded from being used, either as a substitute for such instruments or to contradict or alter them. This is a matter both of principle and policy." Stark.

Ev., 648. This seems very plain, but the application of the rule is not always free from difficulty. In the infinite combination of circumstances, cases arise which seem exceptions, but when clearly examined are found not to fall within the principle. As for example, it may happen that the written instrument does not purport to cover the whole field of contract, and is not intended to be the "depository" of the whole agreement, but only one branch of it. In such case the whole contract may be proved by parol without touching the principal; the object being, not to add to or alter the written instrument, but to show the whole agreement, of which the writing is only a part. Kaphan v. Ryan, 16 S. C. 360, is an example of this class, where the court were "not called on to give construction to the note and mortgage, but to determine from the evidence for what purpose they (as executed) were to be used," etc.. Here the writing covers the whole field, stating who are the parties, and what the consideration and the price, in condensed form, but with exhaustive particularity. Sometimes the written instrument" does not state specifically the consideration; as where a note says generally, "for value received." There is a class of such cases where the consideration may be inquired into, and in that way matter may get in by parol "which does not necessarily tend to change the terms of the note, although by showing the true consideration upon which it was given it may control the recovery upon the note." See McGrath v. Barnes, 13 S. C. 332, where the court reviewed our cases upon the subject, and the former chief justice, Willard, endeavored to reconcile them on the distinction here indicated. In that case it was held that "when an executor gave his promissory note for the payment of money, which was expressed to be the amount due by his testator's estate for medical services rendered, most of which during last illness, parol evidence of a contemporaneous agreement that the note was to be paid only upon a certain condition (that the Probate judge would pass the account) is incompetent." In the case before us there cannot be the slightest doubt that the consideration was as stated in the instru ment. There is no doubt that a mere receipt, although in writing, may be explained by parol; but that goes on the ground that a receipt does not necessarily import a contract. As was stated in the case of Heath v. Steele, 9 S. C. 92: "In itself a receipt does not express the terms of any contract or writing of the minds of the parties between whom it passes, but merely evidences by way of admission the fact stated in it." See Moffatt v. Hardin, 22 S. C. 9; 1 Greenl., § 305.

66

But assuming that this case does not come within any of the seeming exceptions above indicated, it is urged that the paper was too informal and ex parte to amount to a contract, but must be considered as a mere memorandum of a contract," and therefore not such a written instrument" as to come within the rule as to the exclusion of parol evidence. Most assuredly a simple bill of parcels is not a contract, for the very good reason that it lacks the essential element of agreement, being only the statement of a fact-a memorandum; "a note to help the memory; as for instance, the bill for the price of the corn rendered in this case was a mere memorandum. But a contract is a promise from one to another, either made in fact, or created by law, to do, or to refrain from doing, some lawful thing. Bish. Cont., § 1. There is no particular form required, the only requirement being that it must contain the contract of the parties, and be definite and free from ambiguity. We can well understand how, in the hurry of business, parties would substitute condensed forms for regularly drawn out covenants or agreements. The defendants

were offering corn for sale, to come by a vessel; the plaintiffs agreed to purchase a lot, and the defendants committed the agreement to writing thus. "MAY 17. Sold to H. Bulwinkle & Co. * * * corn," etc. "Schooner shipment, payable on arrival. [Signed] CRAMER & BLOHME." Why was that not a complete contract? It is said that the plaintiffs did not sign it. The whole case shows that it was not ex parte, but expressed the contract of both parties. We think it is not unusual, in a certain class of agreements, to be signed only by one party, as in the case of an ordinary note, the terms of which are binding upon both parties. Suppose the defendants had of fered the corn for sale at public auction, and upon a lot being purchased by the plaintiffs at a certain price the defendants had made upon their sale-book the same entry precisely as they made in this case, “Sold, etc., to Bulwinkle & Co.," would they not be liable upon it as their contract? The research of the plaintiffs' attorney enabled him to furnish the court with references to several cases, which seem to conclude this.

In Meyer v. Everth, 4 Camp. 22, the action was on a contract in these words: "50 hogsheads of Hambro's sugar loaves at 155s., free ou board of a British ship. Acceptance at 70 days." Lord Ellenborough held that it was a contract, and refused to admit parol testimony tending to show that when the sugar was purchased a sample was exhibited, saying: "When the sale note is silent as to the sample, I cannot permit it to be incorporated into the contract. This would amount to the admission of parol evidence to contradict a written document," etc.

In Powell v. Edmunds, 12 East, 10, the action was on a sale-note in these words: "April, 1806. I agree to become the purchaser of lot the first (timber trees) at £700, and agree to fulfill the conditions of sale. [Signed] A. EDMUNDS." At the trial an effort was made to show by parol testimony a warrant as to quantity by the auctioneer, but the evidence was rejected, the court saying: "There is no doubt that the parol evidence was properly rejected. The purchaser ought to have had it reduced to writing at the time, if the representation then made as to quantity swayed him to bid for the lot. If the parol testimony were admissible in this case, I know of no instance where a party may not, by parol testimony, superadd any term to a written agreement, which would be setting aside all written contracts, and rendering them of no effect," etc.

In Smith v. Jeffries, 15 Mees. & W. 560, the terms were: "I hereby agree to sell Mr. Smith, of Tanner, three months, and is to give £50 cash on Friday next. [Signed] SAMUEL JEFFRIES." It appeared that in the neighborhood three qualities of potatoes were known as "Wares," and the effort was to show by parol that the contract was for a particular kind of Wares. Held, "that the evidence ought not to have been received; it went to vary and limit the contract between the parties."

In Greases v. Ashlin, 3 Camp. 426, the words were: "Sold to John Greases 50 quarters of oats, at 45s. 6d. per quarter, out of 175 quarters. [Signed] I. STEVENSON, for I. ASHLIN." The defendant attempted to prove that his agent Stevensou had verbally made it a condition of sale that the plaintiff should take away the oats immediately, and had abated 6d. per quarter of the price originally offered, in expectation of his agreeing to do so. The court held that "it was not competent to the defendant to give such evidence, as it materially varied the contract, which had been reduced into writing."

In each of the two last cases cited the paper was signed only by one of the contracting parties, and the action was brought by the party who had not

signed it. See also McClanaghan v. Hines, 2 Strob. 122, and Gibson v. Watts, 1 McCord Eq. 490.

We think the paper proved in this case was a contract in writing of both parties within the rule as to the exclusion of parol evidence.

66

But it is insisted, that while this may be so as to what may be called the terms of the paper-the quality of the article, consideration, time of payment, etc. yet parol testimony was admissible tending to show that the defendants Cramer & Blohme, in selling the corn, committed the agreement to writing, taking the note, and realizing upon it in their own name, were acting, not as the papers represented, but as agents of a house in Baltimore, and that the plaintiffs contracted with said house through Cramer & Blohme as their agents. Is not the signature to a contract in writing, showing who made it, and in what character, a part, and a very important part, of that contract? We are unable to see any good reason why this part should not be protected from alteration or addition, as well as any other part of the contract in writing. It seems to us, that when the defendant signed the contract in their own names that became a part of it, and could not be altered by parol, so as to add to the signature, as agents of Robert Turner & Son, of Baltimore." "A person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes the contract in his own name. * * * If an agent selling goods as bought of him (the agent), he would be personally liable for a failure to deliver the goods." Story Ag. 269. See also id. 219; Benj. Sales, § 219; Higgins v. Senior, 8 Mees. & W. 834; Nash v. Towne, 5 Wall. 703, and Jones v. Littledale, 6 Ad. & El. 486, in which last case cited Lord Chief Justice Denman said: "There is no doubt that evidence is admissible on behalf of one of the contracting parties to show that the other was agent only, though contracting in his own name, and so fix the real principal; but it is clear, that if the agent contracts in such a form as to make himself personally responsible, he cannot afterward, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility. In this case there is no contract signed by the sellers, so as to satisfy the statute of frauds, until the invoice, by which the defeudants represent themselves to be the sellers; and we think they are conclusively bound by that representation. Their object in so representing was, as appeared by the evidence of custom, to secure the passing of the money through their hands and to prevent its being paid to their principals; but in so doing they have made themselves responsible," etc. In the case from Wallace Mr. Justice Clifford said: "Parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal, even though he should propose to show, if allowed, that he disclosed his agency, and mentioned the name of his principal, at the time the contract was executed. Where a simple contract other than a bill or note is made by an agent, the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. Such evidence,' says Baron Parke, 'does not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds another;' and that principle has been fully adopted by this court"-citing numerous authorities.

SALE OF PRIVATE LETTERS

PUBLIC POLICY.

U. S. CIRCUIT COURT, E. D. WISCONSIN, AUGUST, 1887.

RICE V. WILLIAMS.

а

An advertising solicitor entered into a contract with "specialist," to furnish him with 60,000 letters which were in the possession of the Voltaic Belt Company, of Marshall, Michigan, that had been written to tnat company in response to its advertisements of the curative qualities of the instruments and articles in which it dealt. The solicitor paid $500 to the company for such letters, and delivered them to the specialist, who agreed to pay him therefor $1,200, and did pay him $500, but refused to pay him the balance, claiming that the letters had already been used by other specialists, and were valueless. The solicitor sued to recover the balance. Held, that the receiver of the private letters has not such an interest therein that they can be made the subject of a sale without the writer's consent, and that the contract in this case was void for that reason, and also because it was contrary to good morals.

G. W. Hazelton, for plaintiff.

Markham & Noyes, for defendant.

DYER, J. At the conclusion of the plaintiff's testimony on the trial of this case, the court directed a verdict, which in effect was a dismissal of the suit. The plaintiff has moved for a new trial. The facts developed by the testimony were in brief, these: The plaintiff testified that he was an "advertising solicitor," and that among other advertisements solicited by him were such as specialist furnished for the cure of so-called "private diseases." In 1885 he opened correspondence, with the defendant, who was 8 "specialist," practicing his calling at Milwaukee, for the sale to him, for a pecuniary consideration of 60,000 letters which were in the possession of the Voltaic Belt Company of Marshall, Michigan. That company was engaged in furnishing electric belt suspensories, and other electric appliances for the cure of various ailments and disorders. The letters in question were such as it had received from persons residing in different parts of the country, in response to advertisements of the curative qualities of the instruments and articles in which that company dealt. After considerable correspondence on the subject, the plaintiff agreed to furnish to the defendant the letters in question, and the defendant agreed to pay therefor, or for the use thereof in connection with his business, the sum of $1,200. The letters were shipped to the defendant and received by him, and he paid to the plaintiff $500 on the purchase. The plaintiff testified that he paid the Voltaic Belt Company $500 for the letters, and as a part of the transaction, was to furnish to that company other letters procured from "specialists." The defendant's purpose in procuring the letters in question was to obtain the names and post-office addresses of the writers, so that he might send to them circulars advertising his remedies for the various diseases which he professed to cure. It was claimed in argument that it was not, and could not have been one of the objects of the parties engaged in this business, to enable the defendant to learn from the letters the nature of the maladies with which the writers were afflicted, because a perusal of the contents of the letters would be in the last degree dishonorable, and of course the parties contemplated only an honorable transaction! The court is however of the opinion that parties who would engage in such a traffic as this, would hardly refrain, on a point of honor, from a

post-office addresses of the writers, but also all the disclosures which the writers might make concerning the physicial infirmities from which they were suffering. The court has no doubt that this was one of the objects sought in the sale and purchase of the use of these letters, because obviously it was quite as important to the defendant to know whether the writers of the letters stood in need of such restoratives to health as he could supply, as to know their names and postoffice addresses.

The defendant refused to pay the balance of $700 yet due to the plaintiff on the sale, and this suit was brought to recover from the defendant that sum. The defendant resisted payment, on the ground that the plaintiff represented to him, in making the sale, that the letters had never before been used, or in the technical language of the profession "circularized;" that this representation was false, and that the letters were valueless. Enough was disclosed in the testimony to show that the sale of the use of the letters in the manner described, is a branch of “industry" extensively pursued by certain "specialists" throughout the country. But it would seem that in cases where the writers are made the repeated victims of advertising circulars, their better sense at last gets the advantage of their credulity, and they refuse longer to be baited by the remedies which might otherwise tempt them, and so their letters become valueless as articles of merchandise, or for further use. Thus it was, according to the theory of the defense, in the case at bar. The trial however did not proceed far enough to fully develop the facts in this regard.

To fitly characterize the contract in suit is to unreservedly condemn it as utterly unworthy of judicial countenance. It was contra bonos mores, and it would seem that on grounds of public policy, the court might well refuse either to aid the plaintiff in enforcing it, or the defendant in recovering damages for the breach of it. Thus to traffic in the letters of third parties, without their knowledge or consent, and to make them articles of merchandise in the manner attempted here, was, to mildly characterize it, grossly disreputable business. It was said on the argument that the letters were not in evidence, and that the court could assume nothing with reference to their contents. But enough was indicated in the correspondence of the parties which preceded the making of the contract, which correspondence was in evidence, to point to the conclusion that the letters which were the subject of bargain and sale, were written by persons who sought medical aid for disorders with which they were afflicted. Counsel for defendant had in court a large number of the letters, and his statements were not controverted that they related to infirmities and maladies of which the writers sought to be cured. The very nature of the contract in suit presupposes such to have been the fact. Ought courts of justice to lend their sanction to such a traffic? Suppose a physician-trusted and confided in as such in the community-were so far to forget or abuse the obligations of his profession, as to make the confidential communications of his patients the subject of bargain and sale, would any court listen for a moment to his complaint of non-performance of the contract, and aid him to recover the purchase price? Presumptively, the letters here in question, were confidential, at least they were personal as between the writers and the receiver, and though it be true, as was said in argument, that authority is wanting directly applicable to the question here presented, I would not hesitate, on grounds of morality, and upon considerations of common justice, to make an example of this case, by putting upon it the stamp of judicial reprobation.

But there is another ground upon which applying