#### Klonowski, d. b. a. Klonowski Savings Bank, *v.*Monczewski.

*Contracts*— Receipt *signed by one and accepted by*another— *Parol evidence to establish agreement*— Issues *made upon oral contract*— Banks *and banking*— Foreign *exchange.*

1. A writing in the form of a receipt, hut which embodies a new obligation, and purports to set out the purpose for which the money therein referred to is received, and the manner in which it is to be used, may constitute a written contract between the parties, though signed by one only; and the fact that a party not signing takes the same into his possession, control, and custody tends to establish his assent to its terms.

2. But where an issue is made by a claim upon the part of the plaintiff that an oral contract is entered into between the plaintiff and the defendant, setting forth the terms thereof and the particulars in which he claims it was violated hy defendant, the defendant by answer admitting that such oral contract was entered into by the parties, but denying the terms thereof as alleged by plaintiff, and, upon trial of the issue, evidence is submitted by the parties without objection to sustain their respective contentions, the defendant cannot thereafter raise the question that a certain instrument in writing, signed hy him and delivered to the plaintiff, embraced the contract between the parties, and cannot be enlarged, contradicted or explained by parol.

(No. 17887

Decided January 29, 1924.)

Error to the Court of Appeals of Cuyahoga county.

This aetion was instituted in the municipal court of Cleveland, where the defendant in error was plaintiff and the plaintiff in error was defendant. For convenience the parties will he designated as *231plaintiff and defendant, respectively, as they appeared in the trial court. The action was to recover the sum of $827.65, which the plaintiff alleged he paid under the verbal agreement of defendant to purchase 42,000 marks of Polish money therewith, and to forward the same to the bank in Warsaw, and return to plaintiff the official bank book of such bank within 10 weeks from date, which was November 28, 1919, which sum stated included compensation for defendant’s services in purchasing and transmitting the marks. Plaintiff further alleged that the defendant failed to procure said bank book or any other evidence that he had complied with the terms of the contract; that demand was made on January 3, 1921, that the bank book be delivered to the plaintiff, but defendant claimed not to have the same, and did not know when it could be procured, and that plaintiff thereupon informed the defendant that he desired to, and did, revoke said agreement, and demanded the return of his money, which was refused.

The defendant admitted that he entered into a verbal agreement with plaintiff to purchase '42,000 Polish marks, and to forward the same and return to the plaintiff the official bank book of said bank, as alleged in the petition, and that he received the sum of money therein set forth, but he denied any agreement to return the bank book within 10 weeks from that date, and asserted that his agreement was to purchase and transmit such money, and return to plaintiff the bank book evidencing such deposit as soon as the same should be received by him; that since the institution of *232this suit he had received the bank book and was willing and ready to turn it over to the plaintiff. The plaintiff’s statement of claim was filed January 3d, and the defendant’s statement of defense was filed January 29, 1921.

The trial resulted in a verdict for the plaintiff for the full amount of the claim, and judgment was rendered therefor, which was affirmed by the Court of Appeals.

*Messrs. Stearns, Chamberlain & Royon,*for plaintiff in error.

*Mr. Victor J. Conrad,*for defendant in error.

Matthias, J.

Upon the trial of this case the vital disputed issue between the parties was whether the contract entered into embraced an agreement that, if defendant did not complete within 10 weeks the entire transaction undertaken by him, he would return to plaintiff the money which plaintiff had paid to defendant. At the time of the transaction the following receipt was given plaintiff by defendant:

> “No. 554. Cleveland, Ohio, Nov. 28, 1919.

> “Received from Franciszek Monczewski eight hundred twenty-seven and 65/100 dollars for (foreign money) marks 42,000/00. To be remitted to Warszawski Bank. Residence (Na Oszezednosc). “$827.65. Klonowski Savings Bank, per SK.”

The principal contention made by the defendant is' that the trial court committed prejudicial error in disregarding the receipt above set forth, which was introduced in evidence, or did not give it proper legal effect, this claim being based upon *233the theory that, having been signed by one and delivered to and accepted by the other, it constituted a written contract, binding upon the parties, and that evidence of a verbal contract wherein any obligations were imposed in addition to those set forth in the receipt was not admissible. 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. Wigmore on Evidence, Section 2432; *Stone*v. *Vance,*6 Ohio, 246; *Bird, Admr.,*v. *Hueston,*10 Ohio St., 418. However, it is to be noted that such question is not presented by the record in this case; for not only was the evidence of the oral agreement introduced and received without objection by the defendant, but the pleadings of the parties were in accord in that respect, the one averring and the other admitting that the agreement entered into by them was verbal, and evidence was submitted upon the trial by each of the parties to sustain his contention as to the terms of that agreement. In such situation the defendant cannot thereafter 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 explained by parol.

It is the view of counsel for defendant, as stated *234in their brief, that, under the terms of this receipt, as it stands, the defendant would be liable for the value of 42,000 marks after the expiration of a reasonable time within which to deposit the same in the Warsaw bank, while under the oral agreement testified to he was liable for the return of the entire amount paid. There was a sharp conflict in the evidence as to the terms of the agreement. The court gave the jury proper instructions as to the basis of recovery if they found in accordance with the contention of plaintiff, and the evidence adduced by him tending to support the same, to the effect that a part of the contract was to complete the transaction within 10 weeks, placing the money to the credit of the plaintiff in the bank named, and delivering to him the book of that bank evidencing the deposit in the name of and to the credit of plaintiff. The court also instructed the jury on the theory of the ease as presented by the claim of the defendant, and that the plaintiff could recover only the loss he sustained by reason of the failure of the defendant to complete the transaction within a reasonable time, if there had been such failure on the part of the defendant. It is claimed, however, that the trial court committed prejudicial error in the statement to the jury that the plaintiff could recover if the defendant did not transmit the money, but kept the same for speculation, subject to the fluctuation of the market, etc. If the defendant retained the money instead of forwarding as agreed, his purpose is immaterial so far as the plaintiff was concerned. The record does disclose that the defendant undertook to make *235this transaction through a New York bank, but that no amount was placed to the credit of plaintiff in the bank of Warsaw or elsewhere, until the expiration of a year, and the Polish mark had then depreciated to such an extent that its value had almost reached the vanishing point. The manner of completing the transaction and the agencies through which the same was to be done were those of the defendant, and with their selection plaintiff could have nothing to do. He and he alone was under obligation to plaintiff, and to no one else could the plaintiff look for the money which he had paid, or for its equivalent.

It is complained that the court erred in its instructions to the jury with reference to waiver by the plaintiff of his right to require performance of the contract within the time when it should be performed according to his contention. The trial court did attempt to charge the jury on the subject of waiver; but no waiver was pleaded by the defendant, and he was therefore not entitled to any charge upon that subject. If waiver was claimed, that was a matter of defense, the burden of establishing which would be upon the defendant. Under the facts disclosed by this record the charge of the court in that respect could not have been prejudicial to the defendant. Portions of the charge are somewhat confused, but in respect to the subject of waiver the charge is favorable to the defendant, rather than prejudicial.

*Judgment affirmed.*

Wanamaker, Robinson, Jones, Day and Allen, JJ., concur.