American Standard Jewelry Co. v. Witherington

• Decision Date: 17 December 1906
• Citation: 98 S.W. 695,81 Ark. 134
• Parties: AMERICAN STANDARD JEWELRY COMPANY v. WITHERINGTON
• Court: Arkansas Supreme Court

98 S.W. 695

81 Ark. 134

AMERICAN STANDARD JEWELRY COMPANY v. WITHERINGTON

Supreme Court of Arkansas

December 17, 1906

Appeal from Calhoun Circuit Court; Charles W. Smith, Judge affirmed.

Affirmed.

Thornton & Thornton, for appellants.

Campbell & Stevenson, for appellee.

If one party induces another to sign a contract without reading it this may give the signer, if he be deceived thereby, the right to avoid the contract as fraudulent. 9 Cyc. 390; 17 Ark. 498. A contract is an entire thing, and when altered in any of its integral parts is not the same contract. 5 Ark 655. A general objection to an instruction has been condemned. 65 Ark. 259; 73 Id. 534. Objections to a number of instructions in gross will nor be entertained. 38 Ark. 528; 39 Id. 337; 59 Id. 314.

OPINION

HILL, C. J.

Witherington entered into contract with appellant company to purchase a lot of jewelry; he could not read or write, and called his daughter-in-law, who was assisting him in the store, to sign his name for him. The jewelry was shipped by express to Bearden, Arkansas, a railroad and express station not far from Woodberry, an interior hamlet, where Witherington resided. It was directed to Witherington at Woodberry, care of express agent at Bearden. After staying at Bearden for several weeks, the jewelry was returned to the shipper. The contract contains this provision:

"When we deliver goods to transportation company in good order, they become the property of the purchaser, subject to all the conditions and safeguards contained herein. Purchaser pay all transportation charges. All goods are shipped at our earliest convenience."

There was evidence tending to prove that the agent of appellant committed a fraud on Witherington in the procurement of the contract in taking advantage of his illiteracy by purporting to read the contract to him when in fact he omitted important and material terms thereof, including the above. That the goods were purchased at the price sued for is admitted, and the fraud only went to certain clauses in the written contract. Concealment or misrepresentation to an illiterate person of matters in writing will avoid such matter. 1 Page on Contracts, § 64; 9 Cyc. p. 390; Jones v. Austin, 17 Ark. 498.

The question of fraud was submitted to the jury under an instruction fairly accurate, which was not excepted to, and the finding, in effect, is that the above clause, and others not important to this discussion, were fraudulently inserted. If the above-quoted clause was in the contract, the goods became Witherington's on delivery to the carrier. If that clause was not binding, and the verdict takes it out of the contract, then Witherington's liability rests on whether the delivery to the carrier was delivery to him. At the bottom of the contract, after Witherington's signature, was a statement that the jewelry was to be sent by express to Bearden; but this was no part of the signed contract, and there was no evidence of a direction that the goods were to be sent there.

Witherington testified that Camden was his freight station. but that he sometimes received a little at Bearden, and that he did not receive any notice from the express company or any one else that the jewelry was sent to Bearden. The appellant does not show notice was given of the...