Barrie v. Miller

• Decision Date: 25 May 1898
• Citation: 30 S.E. 840,104 Ga. 312
• Parties: BARRIE v. MILLER.
• Court: Georgia Supreme Court

30 S.E. 840

104 Ga. 312

BARRIE v. MILLER.

Supreme Court of Georgia

May 25, 1898

Syllabus by the Court.

1. Where a contract of sale described the article sold as the "Edition de Luxe of Art and Architecture," and stated that a special feature of the edition would be an "aquarelle fac simile, matted in a separate fascicule," and the meaning of the foreign words above quoted was unknown to the purchaser, and upon a statement of this fact to the seller's agent the latter fraudulently represented to the purchaser that the articles described by the expressions above quoted were of a certain character when the fact was that the articles were of an entirely different character, and of considerably less value, such statement would amount to a fraud upon the purchaser; and a plea setting up these facts, and an offer to rescind duly made, would be a good defense to an action brought on the contract, and evidence in support of such plea would be admissible, notwithstanding the fact that the contract stipulated that "no other conditions or representations than those herewith printed will be binding on either [of] the principals."

2. In the present case there was evidence authorizing the jury to find in favor of the defendant, and there was no error in overruling the plaintiff's motion for a new trial.

Error from superior court, Richmond county; E. H. Callaway, Judge.

Action by George Barrie against F. H. Miller, Jr. There was a judgment for defendant, and plaintiff brings error. Affirmed.

S. N Evins and Henry C. Roney, for plaintiff in error.

F. H Miller, Jr., in pro. per.

COBB J.

Barrie sued Miller on a contract for the sale of certain pictures, described as the "Edition de Luxe of Art and Architecture"; the contract further stating that a special feature of the edition would be an "aquarelle fac simile, matted in a separate fascicule." In the contract was the following stipulation: "No other conditions or representations than those herewith printed will be binding on either [of] the principals." Miller pleaded, in substance, that one Green, the agent of the plaintiff, induced him to subscribe for the pictures described in the contract falsely and fraudulently representing that the same would be an "artist-proof edition"; that the expressions used in the contract do not show on their face whether or not they represent the kind of pictures contracted for, and that the defendant, being unlearned in the technical terms of art, and relying on the representations of plaintiff's agent, signed the contract, believing that he would receive an artist-proof edition of the pictures; that the terms used are ambiguous, and may or may not mean an artist-proof edition. He further alleges that some time after signing the contract he discovered that the agent of plaintiff was not soliciting subscriptions for an artist-proof edition, and that he thereupon wrote to plaintiff and offered to rescind; that the plaintiff received notification of this offer, but in spite of this notice, and a further notice to the agent, sent defendant, by express, a box, the contents of which he is ignorant, but supposes it to contain the pictures; that at his instance the express company has informed plaintiff that the box remains in the office at the risk of plaintiff; and that for these reasons he is not indebted to plaintiff in any sum whatever. A motion made by plaintiff to strike these pleas was refused, and evidence was admitted thereunder. The evidence was conflicting; that for the defendant tending to establish the truth of his pleas, and that for the plaintiff tending to show that the sale was made in good faith, without any misrepresentation by the agent, and, further, that the agent exhibited to defendant a sample of the pictures sold. The jury returned a verdict for the defendant, and, plaintiff's motion for a new trial being overruled, he excepted. The motion contains, besides the general grounds, an assignment of error on the refusal of the court to strike defendant's pleas.

1. The pleas allege, as stated above, that the expressions set out in the contract as descriptive of the pictures contracted for are ambiguous, and that it was due to the fraudulent representations of plaintiff's...