{
  "id": 5259812,
  "name": "Onyx Soda Fountain Co. v. Druggists' Circular Co.",
  "name_abbreviation": "Onyx Soda Fountain Co. v. Druggists' Circular Co.",
  "decision_date": "1899-10-27",
  "docket_number": "",
  "first_page": "666",
  "last_page": "669",
  "citations": [
    {
      "type": "official",
      "cite": "84 Ill. App. 666"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "85 Ill. 356",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2780120
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/85/0356-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 372,
    "char_count": 6113,
    "ocr_confidence": 0.533,
    "pagerank": {
      "raw": 4.03580807328026e-08,
      "percentile": 0.1570406228316786
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    "sha256": "65ad080dd92beaea60797238beac7381fff255a307740fea523ec4ce2949b22b",
    "simhash": "1:a6f39245fe13dd66",
    "word_count": 1046
  },
  "last_updated": "2023-07-14T19:05:11.837712+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Onyx Soda Fountain Co. v. Druggists\u2019 Circular Co."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Shepard\ndelivered the opinion of the court.\nThis appeal is from a judgment of the Circuit Court, recovered there upon an appeal from a justice of the peace court.\nThe basis of the suit is a written contract, as follows:\n\u201cThe Druggists\u2019 Circular, 72 William St., New York,\nChicago, Ill., August 10, 1896.\nPlease insert our one-half page advertisement in The Druggists\u2019 Circular for six times, beginning November, 1896, for which we agree to pay to your order one hundred and ninety dollars, in monthly payments in advance. All matter for advertisements subject to your approval. You will not be held responsible for any statement or condition not written on this order. You may discontinue this advertisement and charge us at short rates as per schedule on back of this order if payments are not made as above. With privilege of discontinuing at end of three months to cost $114.\nThe Onyx Soda Fountain Co.,\n2515 State St.\nHoward B. Hayden,\n917 Royal Insurance Bldg., Chicago.\nPer J. B. Herron, Sec\u2019y.\nThis order does not become binding until approved by the publisher. H. J. S.\nEnter 3 mo., $114.00. Hayden.\u201d\nActing upon this contract appellant furnished advertisements and \u201c cuts\u201d for the November and December, 1896, numbers of the publication for those months (it being a' monthly circular), and the same were published by appellee and paid for by appellant.\nOne contention is that the writing does not constitute a binding contract for lack of mutuality. If there be any defect in the writing, as a contract, it was cured by both parties acting under it.\nThe advertisement furnished by appellant for the months of November and December included \u201ccuts\u201d of fountains, which, as soon as used, were returned to appellant at its request. For the next four months no \u201c cut \u201d appeared, but the descriptive or verbal matter of the advertisement for December was reproduced, with a reference to the December number for the design or \u201c cut \u201d there appearing.\nNo objection to the advertisement, as it was published, was made by appellant until March 24, 1897. when it requested a notification as to the time of going to press, so a change in the illustration and copy might be made, but it was then too late for the April number, and the issue for that month contained an advertisement substantially like the preceding ones, without a \u201c cut.\u201d\nWe regard that what was done by appellee was a substantial compliance with the contract, and that if anybody was at fault in the matter it was the appellant.\nThe fair and reasonable construction of the writing is that appellee should insert a half page advertisement for six consecutive months, beginning with Hovember, 1896, such advertisements to be furnished by appellant, subject only to it containing matter not injurious to the publication.\nIt thus became the duty of appellant if it wanted to change the advertisement in any particular to furnish such change in apt time for a forthcoming number of the circular. \u25a0 Ho such change was requested until in March, at a date too late for the April number. There is no good reason apparent in the record why appellant should not perform as he agreed to do.\nIt was not error for the court to refuse appellant\u2019s offer to prove a verbal agreement at, and before the making of the writing that would tend to vary its terms. The writing expressed a complete agreement and its terms could not be contradicted or varied by extrinsic evidence.\nIt is an inflexible rule of law that \u201c the terms of a written contract cannot be varied, altered or changed by parol evidence. Where a contract has been reduced to writing the prior and contemporaneous verbal agreements of the contracting parties are merged into the written instrument, and resort can only be had to the instrument itself to determine the terms and conditions of the contract and liabilities of the parties.\u201d Weaver v. Fries, 85 Ill. 356.\nThe point was made and preserved by appellant\u2019s assignment of errors, and the original record filed here shows there was a mistrial of the cause, in that one 0. Matthai was sworn as one of the jurors in the cause and that he did not join in the verdict; that one S. E. Haynes did sign and join in the verdict, but was not sworn to try the issues.\nSuch constituted fatal error, but appellee was subsequently permitted to bring up an additional record in the form of an order of the Superior Court correcting the record as it originally stood.\nThe additional record is enough to save the judgment from being reversed, but it can only be affirmed at the costs of appellee.\nThe order is that the judgment be affirmed at appellee\u2019s costs. Affirmed at appellee\u2019s costs.",
        "type": "majority",
        "author": "Mr. Justice Shepard"
      }
    ],
    "attorneys": [
      "Mapledoram & Duffy, attorneys for appellant.",
      "Cunningham, Vogel & Cunningham, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "Onyx Soda Fountain Co. v. Druggists\u2019 Circular Co.\n1. Contracts\u2014When in Writing, Not to be Varied by Parol Evidence.\u2014The terms of a written contract can not be-varied, altered or changed by parol evidence.\n3. Same\u2014Prior and Contemporaneous Verbal Agreements.\u2014-Where a contract has been reduced to writing, all prior and contemporaneous verbal agreements of the contracting parties in relation to it are merged in the writing, and resort can only be had to such writing to determine the conditions of the contract and the liabilities of the parties.\n3. Appellate Court Practice\u2014-Errors Cured by Additional Records.\u2014The fact that the original record filed in the Appellate Court shows that one person, sworn as one of the jurors in the cause, did not join in the verdict, but that another did sign and join in the verdict but.was not sworn to try the issues, constitutes a fatal error, but may be cured by bringing up an additional record in the form of an order of the trial court correcting the record as it originally stood.\nAssumpsit, on a contract for advertising. Trial in the Circuit Court of Cook County, on appeal from a justice of the peace; the Hon. Charles A. Bishop, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in the Branch Appellate Court at the October term, 1898.\nAffirmed.\nOpinion filed October 27, 1899.\nMapledoram & Duffy, attorneys for appellant.\nCunningham, Vogel & Cunningham, attorneys for appellee."
  },
  "file_name": "0666-01",
  "first_page_order": 674,
  "last_page_order": 677
}