and not to go through with the plan.
I have concluded that the testimony of the plaintiff as to this transaction is true. With respect to what is probably the most significant issue of fact, namely, whether the form requesting the change in the policies was filled out at the time, it is difficult to accept defendant's testimony. The copy introduced into evidence was typed under a carbon and the date October 14, 1941, was unquestionably written on the typewriter at the same time as the rest of the form. The evasive and conflicting explanation of the defendant's employee as to why this date was allegedly left blank when the form was prepared, and why the date of October 14 had been changed in ink to October 18, although the plaintiffs were notified on the 14th that this form had been mailed to the company, lend strong support to this conclusion.
Defendant argues strenuously that it is impossible to give credence to plaintiff's testimony because no intelligent person could believe that substantial cash refunds and premium reductions could be effected without a change in the policies. It is not difficult to understand this, however, where, as appears, this was precisely the impression defendant was seeking to create in order to sell its services. It may be noted also that defendant advertised extensively by foreign language broadcasts, and as to prospective customers not too familiar with the English language, the ease with which misunderstandings could be encouraged or at least not dispelled is obvious. And without considering the soundness of the recommendations of the defendant to these plaintiffs, it may also be pointed out that defendant was not too meticulous in ascertaining the facts upon which this advice was based, in view of Griffin's admission that the advice with respect to one policy assumed that dividends had been permitted to accumulate, although they in fact had not, and defendant had made no effort to ascertain this fact.
The defendant further argues that, since the written agreement between the parties provided that the sum of $198 was to be paid to him in consideration of the acceptance of his advice and recommendations as to the policies, the plaintiffs are precluded as a matter of law from showing any prior or contemporaneous oral agreement binding defendant to procure the refund and premium reductions which he advised could be effected. Plaintiffs concede that they read and understood this agreement, but contend that its execution was induced only by the fraud of the defendant in representing that the refund and premium reduction could be effected without any change in the policies. But assuming that this was the advice of the defendant on the basis of which plaintiffs executed the written agreement to pay him for his advice, the fact remains that the defendant did not agree in that written agreement to procure any refund and premium reduction and hence a prior or contemporaneous parol promise to do so is not enforceable.
But while defendant did not obligate himself in the written agreement to obtain for plaintiffs the refund and premium reduction which he advised could be procured, it is clear that the contract, construed in the light of the surrounding circumstances required that the advice given be feasible to produce the results promised, in order that defendant be entitled to the fee which plaintiffs agreed therein to pay. In other words, if the defendant advised a customer that his insurer would make specified refunds and premuim reductions if the customer made changes in his life insurance program in accordance with defendant's recommendations, defendant would obviously not be entitled to the agreed fee for his advice if the insurer would not make the stipulated refund and reduction upon the effecting of the changes advised. In view of the defendant's admission that the plaintiffs' insurer would not make the agreed refund and premium reduction without changing their policies, although, as I have found, defendant's advice to the plaintiffs was that the insurer would do so, there is a failure of consideration and plaintiffs are entitled to the return of the $190 paid by them for said advice.
Plaintiffs argue that the contract declared upon was an oral contract between the defendant and the three plaintiffs and that a written agreement by one of them does not bind the others. Under the circumstances, however, it appears clear that to the extent of their interest in these policies, the other plaintiffs authorized plaintiff Michael Karpchuk to act on their behalf and they cannot repudiate the written agreement in the execution of which by him they acquiesced. I make the following
Conclusions of Law.
1. The parol evidence rule precludes recovery on an oral promise inconsistent with, and not made part of, a contemporaneous or subsequent written agreement between the parties.
2. The rights of all the plaintiffs are determined by the written agreement between Michael Karpchuk and the defendant.
3. There was a failure of consideration under the written contract on the part of the defendant, and plaintiffs are entitled to a return of the consideration of $190 paid by them to the defendant.
4. Judgment is hereby entered in favor of the plaintiffs and against the defendant in the amount of $190 with interest from October 13, 1941.
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