Alfred Shrimpton & Sons v. Philbrick

• Citation: 53 Minn. 366
• Parties: ALFRED SHRIMPTON & SONS, (Limited,) <I>vs.</I> F. W. PHILBRICK.
• Decision Date: 01 June 1893
• Court: Supreme Court of Minnesota (US)

53 Minn. 366

ALFRED SHRIMPTON & SONS, (Limited,) vs. F. W. PHILBRICK.

Supreme Court of Minnesota.

Argued by appellant, submitted on brief by respondent, May 25, 1893.

Decided June 1, 1893.

Appeal by plaintiff, Alfred Shrimpton & Sons, (Limited), a corporation, from an order of the District Court of Redwood County, B. F. Webber, J., made January 14, 1893, denying its motion for a new trial.

The defendant, F. W. Philbrick, on September 23, 1891, gave plaintiff's traveling salesman an order for two great gross papers of pins, 200 in a paper, at two and a fourth cents per paper, $77.76, and for two great gross papers, 360 in a paper, at three and three-fourths cents per paper, $129.60, payable in thirty days; one per cent. discount if paid in ten days. The pins were to be made at the factory at Redditch, England, and shipped to plaintiff's American Depot, 273 Church Street, New York, and from there to defendant at Redwood Falls. The goods were shipped from New York November 21, 1891. Defendant refused to receive them and on December 3, 1891, wrote plaintiff at New York that the order was for "four gross," not "great gross," and that if the printed word "great" in the order had not been erased, it was either an oversight or an intentional fraud on the part of plaintiff's agent.

The goods remained in the depot at Redwood Falls, and on March 7, 1892, plaintiff brought this action to recover the price, $207.36. The issues were tried November 11, 1892. Defendant had a verdict.

L. G. Davis and J. A. Eckstein, for appellant.

M. M. Madigan, for respondent.

MITCHELL, J.

1. This action was brought to recover the purchase price of certain merchandise, the principal item of which was four great gross of papers of pins, which plaintiffs claim defendant ordered, and which they shipped to him, but which he refused to accept, on the ground that he had ordered only four gross.

Defendant's written order read "four great gross," but he alleged that the actual contract, as orally agreed on between him and plaintiffs' agent, was for only four gross, but that the agent, who voluntarily assumed to reduce the contract to writing, with intent to cheat and defraud the defendant, wrote it for "four great gross," and then falsely represented to him that it was written in accordance with the actual agreement; and that, relying upon these false and fraudulent statements, the defendant signed the order without reading it, believing that it was for four gross, as they had agreed.

If the defendant established these allegations, it would be a good defense, notwithstanding that he might have been negligent in relying on the representations of plaintiffs' agent and in signing the order without reading it. C. Aultman & Co. v. O'son, 34 Minn. 450, (26 N. W. Rep. 451;) Maxfield v. Schwartz, 45 Minn. 150, (47 N. W. Rep. 448;) Erickson v. Fisher, 51 Minn. 300, (53 N. W. Rep. 638.)

Of course, as the court correctly instructed the jury, the mere fact that the defendant signed the order, without reading it, for a greater quantity of goods than he intended to purchase, would constitute no defense. The defense, if defense there was, consisted in the fraud practiced by the plaintiffs' agent in procuring the execution of a written contract different in terms from those in fact...