Klonowski v. Monczewski

142 N.E. 368, 109 Ohio St. 230, 2 Ohio Law. Abs. 119, 109 Ohio St. (N.S.) 230, 1924 Ohio LEXIS 417

Opinion

MATTHIAS, J.

Ep'tomized Opinion

First Publication of this Opinion

This action was commenced in Cleveland Municipal Court. Monczewski sued Klonowski, who conducted a savings bank, to recover $827.65 which M. alleged he paid to K. under a verbal agreement of K. to purchase 42,00i0 marks of Polish money, and to forward the same to the bank in Warsaw, and to return to M. the official bank book of such bank within ten weeks. M. alleged that K. failed to procure or deliver to him the bank book, and that after demand was made by him, K. admitted that he had not procured the book and thereupon M. demanded the money, which was refused.

K. admitted in his answer the oral agreement, except that he deined any agreement to return the book as soon as it was received. K. also alleged that after the suit was filed the bank book was received and that he was ready to turn it over. Evidence of the oral agreement was admitted without objection by K. A verdict was returned for M., judgment was rendered thereon, and the Court of Appeals affirmed the judgment.

At the time of the transaction, K. signed and delivered to M. a written acknowledgment of the receipt of the money, and also wrote thereon “to be remitted to Warsaw bank.” K, contended that this receipt, having been signed by K. and accepted by M., constituted a written contract, and ’ that evidence of a verbal contract wherein'any obligations were imposed in addition to those set forth in the receipt, was not admissible.- In affirming the judgm'ent, the Supreme Court held: -

1. “It may be stated as a general proposition that where a writing- in the form- of a receipt embodies a new obligation -and purports to set out the purpose--for which the money is received and the manner in which it is to be used, it may constitute a written contract between the parties, though signed by one only; -and the fact that the party not signing takes the instrument into his possession, control and custody, may establish his assent to its terms. 10 OS. 420.” This question is not presented in this case, for evidence of the oral agreement was received without objection, and the pleadings admitted the oral agreement. “In such situation defendant cannot raise the question or make the contention that the instrument signed by him and delivered to' the plaintiff embraced a contract between them which cannot be enlarged, contradicted; or explaned by parol.”