B.F. Bonewell & Co. v. Jacobson
| Citation | 106 N.W. 614,130 Iowa 170 |
| Parties | B. F. BONEWELL & CO. v. NELS JACOBSON, Appellant |
| Decision Date | 12 March 1906 |
| Court | United States State Supreme Court of Iowa |
Appeal from Polk District Court.-- HON. JAMES A. HOWE, Judge.
ACTION to recover the purchase price of certain specified fruit trees alleged to have been sold by plaintiffs to defendant under a contract of sale. The defendant pleaded that the contract was procured by fraud and that plaintiffs had not complied with its terms on their part. At the conclusion of the evidence the court directed a verdict for plaintiffs for the amount specified in the contract and entered judgment against defendant thereon. The defendant appeals.-- Reversed.
Reversed.
McCarthy & Lee, for appellant.
No appearance for appellee.
The contract on which plaintiffs sue consists of an order for fruit trees of various kinds made by filling out blanks in a printed form, signed by defendant in the space indicated for the purchaser's signature at the bottom of the page. For the purpose of making plain the points of controversy in this case, it is sufficient to say that on the back of the sheet on which the form for the order was printed were written the following words: And that the introductory portion of the order contained these provisions:
It is hereby expressly agreed by and between the parties to this agreement that neither party shall be bound by or permitted to claim or enforce any change or modification of this agreement whatever, unless such change or modification is in writing and is signed by each party to this contract. It is also expressly understood that no agent nor any person or persons representing or claiming to represent any party hereto have any right or authority to make any representation in any wise or manner to change or modify this agreement.
The theory adopted by the court in overruling defendant's motion to strike out portions of a reply filed by plaintiffs and in excluding evidence offered by the defendant supporting his affirmative defense was that these printed stipulations precluded the defendant from relying upon fraudulent representations made to him by plaintiffs' agents preceding the making of the written contract, and that the writing on the back of the printed form was no part of the contract and could not be shown to be part of it by parol evidence.
I. On the trial defendant offered to prove various representations made by plaintiffs' agents at the time the contract was procured, such as that the agents represented that plaintiffs desired to set out a sample advertising orchard in defendant's locality under a contract which they called an "orchard contract," the printed form of which they had neglected to bring with them, but which provided that such an orchard was to involve no expense to the person on whose land it was set out save the use of the land, and that plaintiffs would care for it and take their pay in the fourth year's crop from the trees thus set out, that plaintiffs were the owners of an extensive nursery near Des Moines and had already set out one advertising orchard in northwestern Iowa similar to the one which they proposed to set out for defendant, and that the varieties of the fruit trees were new and improved varieties not sold by other nursery men, etc., and that these representations were false; but on plaintiffs' objection such evidence was excluded.
We do not understand that there is any rule of law precluding the defendant, in an action on a written contract, from pleading and proving fraudulent representations of the other party on which he has relied to his prejudice as inducement for the making of the contract sued on. This is the ordinary defense of fraud, which may be interposed in an action at law by way of defense to recovery on a written contract. It is perhaps true that by a stipulation in a written contract collateral agreements or warranties attempted to be made by agents may be prevented from becoming portions of the ...
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