¶1I concur in reversing the judgment and order herein, on the ground that the *239decision of the court below is not justified by the evidence. Conceding that the evidence would have been excluded on objection that it was incompetent, for the reason that it tended to change the terms of a written agreement, yet, as it went in without objection, the court below was bound to consider it and give it its due weight. I know of no rule of law which justifies any court in disregarding evidence of the character introduced in this case, because if objected to it would have been ruled out. It was before the court on the trial of this case, and demanded consideration as much as the written agreement or any other matter testified to on the trial.
¶2Further, .1 am of the opinion that plaintiff was entitled to recover the twelve hundred dollars at the end of the sixty days. The twelve hundred dollars to be paid Tyler under the express terms of the contract, “ in any event,” referred to the twelve hundred dollars mentioned first in the contract, which sum was advanced by plaintiff, and was to be paid him “in any event”; that is to say, whether or not the thirty thousand shares were sold within the sixty days, and whether the fifty cents per share got into the box or not within the aforesaid period. If there was no sale, and no money got into the box, Tyler was still to have back the sum advanced when .the sixty days had passed. This we think the fair and just construction of the contract, deducible from the words employed by the parties to express their meaning, and patent on the face of the contract.
¶3For the foregoing reasons given, I am of opinion that the judgment and order should be reversed and the cause remanded for a new trial.