CHARLES L. BUCKI, APPELLANT,

v.

MAX SEITZ, APPELLEE

Cartkü, J.

(after ninthly the fants):

On the trial plaintiff offered in evidence the contract, a copy of which is given in full in the statement of facts, which was objected to by defendant upon the ground that “it is not the contract sued on; the contract offered in evidence having a’ restriction in it as to the amount of money to be furnished by the defendant, while the contract sued upon has not.” It was admitted in evidence, whereupon deféndant moved to strike it out because “it purports to be a contract between Jacob Bueki and Charles L. Bucki and Max Seitz, and not a contract between Max Seitz and. Charles L. Bucki,” which motion was overruled. 'These rulings were excepted to, and are assigned as error. It appears from the record that the contract referred to was executed in triplicate, one of which was held by .'plaintiff, one by defendant, the other by Jacob D. Buckey. During the progress of the trial the defendant offered his copy of the contract, and it was read in evidence without objection. As this contract was in the same language as the one complained Pf, we fail to ¡see where the defendant was injured, -even if the court erred in overruling his objections and motion to strike. Indeed the very clause in the contract upon which the objection to its introduction was •based was beneficial to defendant as tending to prove his thirdfand fourth pleas. A new trial will not be granted for the admission of illegal. evidence to prove a fact which is fully established by other and legal evidence in the canse, it being clear that the ver•dict was not influenced|thereby. Tilly vs. State, 21 Fla. 242; Pensacola & Atlantic R. R. Co. vs. Anderson & Peck, 26 Fla. 425, 8 South. Rep. 127; Tischler vs. Apple & Finley, 30 Fla. 132, 11 South. Rep. 273; Roof vs. Chattanooga Wood Split Pulley Co., 36 Fla. 284, 18 South Rep. 597.

Several assignments of error are based upon rulings •of the court admitting evidence objected to. We do not deem it necessary to consider these assignments, .as the judgment must be reversed on other grounds, and the questions involved will not necessarily arise on another trial. It is doubtful if these exceptions •can be considered, because the bill of exceptions does not show which party excepted to the rulings. The •objections and exceptions appear in this form: “Objection” (stating the grounds); “objection overruled, exception noted.” Who made the objection and masked for an exception to be noted is not stated, but we are left to infer that such objections were made and exceptions taken by the appellant. The rule in force at the time this bill of exceptions was made up prescribed a form to be followed, which, if adhered to, would have left no doubt of the sufficiency of the exceptions. Common Law Rule 103.

The first assignment of error is based upon the refusal of the court to grant a new trial. This motion embraces several grounds, but as appellant argues only one of them, viz: The verdict was contrary to law and the weight of the evidence, we will consider that one only, and treat all others as abandoned. The plaintiff bases his suit upon a written contract entered into between him and the defendant, and, in obedience to Common Law Rule 14, filed with the declaration this written contract. The declaration alleged an -agreement on the part of defendant to furnish all requisite capital, implements, machinery and labor to carry on the business of mining; and the only breach of the contract alleged in the declaration was that about August 30th, 1891, defendant interrupted and prevented plaintiff from further prosecution of the business of mining, and declined to furnish any more capital or implements to carry on the business, although defendant was entirely satisfied with the quantity and quality of the phosphate mined. It is true there was no plea to the declaration equivalent to the .general issue, because the first plea was inapplicable -to this action (Bucki vs. McKinnon, 37 Fla. 391, 20 South Rep. 540), and the second plea was in denial only of the alleged breach of the contract; but the third and fourth pleas of defendant alleged that he had furnished the necessary lands, aud also capital^ tools and implements to the amount of $2,500, which sum was by the contract, it was alleged, all that defendant was to furnish to prepare the first cargo of phosphate for shipment, and that such cargo had not been prepared by plaintiff. Upon these pleas issue was joined, and of course the only question submitted to the jury under them was as to whether they were true. The first matter offered in evidence by plaintiff was the written contract containing a clause limiting defendant’s obligation to furnish capital, tools, machinery and labor “to the sum of ($2,500) twenty-five hundred dollars, which sum is to prepare and ship first cargo” of phosphate. Plaintiff’s declaration expressly admitted that the work was stopped by defendant “before any of the phosphate had been shipped or any had been prepared for market,” and it was nowhere denied in the evidence that when the work was stopped by defendant he had furnished over $2,500; and he testifies that he had at that time furnished something over fifty-five hundred dollars. This being the status of the pleadings and evidence when the case was submitted to the jury, they were not justified in finding a verdict for the plaintiff.

The plaintiff on the trial introduced evidence tending to show that according to an oral agreement between him and the defendant there was no limitation upon the amount of capital, machinery, etc., to be furnished by the defendant, and that the limitation embraced in the words italicised in the contract set forth in the statement of facts was inserted by the-defendant subsequent to the time the contract was signed by plaintiff, and that plaintiff never agreed to abide by such limitation, and immediately notfied de fendant of that fact as soon as he discovered the clause in the contract. The evidence shows that the parties-made an oral agreement at Ellaville, in Suwanneecounty; that shortly afterwards they met in an attorney’s office in Jacksonville; that defendant explained' to the attorney the nature of the contract to be drawn;, that it was understood that plaintiff would sign the contract in triplicate when prepared, and the contract was; then to be forwarded to defendant in New York, whither he was then bound, for his signature; that the contracts were drawn by the attorney and signed by plaintiff in the form given in the statement of facts, except that the words “up to the sum of ($2,500) twenty-five hundred dollars, which sum is to prepare-and ship first cargo,” were not contained therein; that the contracts after being signed were (presumably) by the attorney who prepared them forwarded to defendant in New York; that before signing them defendant inserted the words quoted in each of the contracts, and between June 20 and July 5, 1891, delivered one copy of the contract in that shape to plaintiff; that plaintiff did not then read the contract over, nor after-wards until he was prevented by defendant from continuing his mining operations; that he then immediately notified defendant that he did not agree to this-alteration and repudiated same. There is some conflict in the evidence as to whether the oral agreement embraced the limitation referred to, but even if it did it can not avail the plaintiff in this suit, because he-has not declared upon the oral agreement, but seeks to hold defendant upon the written one. The defendant had a right to insert any clause he pleased in the written agreement before he signed or delivered it, for, until it was signed by him and delivered, it was not Ms contract. The contract as originally signed by plaintiff was no more than a proposal, and, in order to become binding upon defendant, must have been signed by him. When he subsequently inserted other stipulations in the contract, and signed and delivered same to plaintiff, this was tantamount to a rejection of plaintiff’s proposal and the making of a counter proposition. Robertson vs. Tapley, 48 Mo. App. 289. It nmy be that by adding to the contract after it was signed by plaintiff the plaintiff was thereby released, bat if the defendant can be held at all upon the written contract, his liability must be determined by its provisions at the time of its execution by him, unless such provisions are afterwards legally waived or modified, of which there is no evidence in this record.

There was no effort made by plaintiff to prove any oral contract until after defendant had offered evidence that the original oral agreement included a provision limiting his liability similar to the one in the written contract. Plaintiff then offered evidence in rebuttal to show that something had been said in the negotiations previous to the drawing of the written contract about the cost of mining the first cargo not •exceeding §2,500, but that when the terms of the contract were given to the attorney for the purpose of enabling him to prepare it nothing was said about this, and that no such stipulation was in the written contract when plaintiff signed it. The declaration was perhaps broad enough to admit evidence of the oral contract as a basis for recovery, but having filed the written contract with his declaration, offered it in evidence, made no attempt to prove any other contract -except in rebuttal, the plaintiff must recover, if at all, on the written contract, because for the purposes of that particular trial at least he elected to stand upon it. This being true, he could not recover upon the theory of an oral contract different from the written one, however satisfactorily proven. Wilkinson vs. Pensacola & Atlantic R. R. Co., 35 Fla. 82, 17 South. Rep. 71.

For the reasons given the judgment of the court below is reversed and a new trial awarded.