Bixler v. Wright

• Decision Date: 12 April 1917
• Citation: 100 A. 467,116 Me. 133
• Parties: BIXLER v. WRIGHT.
• Court: Maine Supreme Court

100 A. 467

116 Me. 133

BIXLER

v. WRIGHT.

Supreme Judicial Court of Maine.

April 12, 1917.

Exceptions from Supreme Judicial Court, Somerset County, at Law.

Action by Miles F. Bixler against Perley A. Wright. Judgment for plaintiff, and defendant excepts. Exceptions sustained, and judgment ordered for defendant in accordance with stipulation.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MADIGAN, JJ.

O. H. Drake, of Pittsfield, for plaintiff. Hanson & Collidge, of Pittsfield, for defendant.

SAVAGE, C. J. Action to recover the price of certain goods sold to the defendant in accordance with a written order signed by him. At the conclusion of the evidence, the presiding justice directed a verdict for the plaintiff, and the defendant excepted. It was stipulated by the parties that, if the exceptions are sustained, judgment shall be entered for the defendant.

It is evident that the action is misconceived. The goods were shipped to the defendant, but were never accepted by him. In such a case, the seller's remedy is not a suit for the price, but a special action for breach of the implied contract to receive and accept. To maintain an action for the price, actual acceptance must be shown. Tufts v. Grewer, 83 Me. 407, 22 Atl. 382; Greenleaf v. Gallagher, 93 Me. 549, 45 Atl. 829, 74 Am. St. Rep. 371. But this point does not appear to have been made at the trial, and is not made in argument before this court. It is well settled that a question not raised at the trial will not be considered on exceptions. Stockwell v. Craig, 20 Me. 378; Withee v. Brooks, 65 Me. 14; Verona v. Bridges, 98 Me. 491, 57 Atl. 797; Coan v. Auburn Water Com'rs, 109 Me. 311, 84 Atl. 145.

The defense offered is that the defendant's signature to the order, under which the goods were shipped, was procured by fraud. The defendant says that he signed the order without reading it. He does not controvert the well-settled rule that, in the absence of fraud or misrepresentation, one who signs a contract or other written instrument without reading it is presumed to know its contents. But he says that his signature to this order was procured by the fraud and misrepresentation of the agent.

A verdict having been directed for the plaintiff, the only question for this court to determine is whether there was any evidence that would have warranted the jury in finding that the defendant's signature was induced by fraud. Johnson v. N. Y., N. H. & H. R. R., 111 Me. 263, 88 Atl. 988, Ann. Cas. 1916C, 681. Fraud is a mixed question of law and fact. It cannot be taken from the jury when there is evidence that warrants an affirmative finding.

It is true in a case like this one that the defendant is under the burden of substantiating the charge of fraud by clear and convincing proof. Strout v. Lewis, 104 Me. 65, 71 Atl. 137. In this case the facts are undisputed. No attempt was made to contradict the defendant's testimony, and we can discover no reason why the jury might not have been warranted in believing it.

The defendant's story is this: He is the proprietor of a country store in a small village. He was approached in his store by the plaintiff's agent, James, who introduced himself as a brother Odd Fellow, and said that he had been sent to the defendant by one Raynes, a nearby neighbor, which latter statement was not true. The agent said that he had some jewelry that he was putting in on consignment, and then showed the defendant his goods. Then, to use the defendant's language:

The agent "told me on these goods that I would pay for the goods every two months, $32, providing I had sold that amount of jewelry, and if not, if I had sold $5 worth or $10 worth of jewelry, that I could send that amount in to the company and tell them that that was all that was sold of jewelry at the present time, and that would be all right. And at that time, as 1 remember, it was growing a little dark, although I am not positive that I had my lights on but there was a number of customers in my store, and, of course, I kept dodging out to wait on them, and then when I went to sign this contract, he was standing—well, as my office stands, I stood here, and this store is out like that (illustrating), and there is a little kind of a place, here (indicating), to come into the office, rather narrow, and I, of course, stepped opt like this to look through my store to see who was waiting for me. Mr. James stood on the further side here, then handed out this card, not a card, but a pad like, holds his hands like this, I takes the other end, takes the corner of it and commenced to sign my name on it, didn't think no more of it; and that is about the way he got my signature on the contract."

The defendant further says that the agent had told him that at the end of the year they would take back all the goods not sold. The defendant did not read the contract before signing. James was a stranger to him. And the defendant before this time had never heard of the Continental Jewelry Company, under which name the plaintiff did business. These are all of the material facts concerning the signing.

The paper which the defendant signed was not an order for jewelry on consignment, but was an unconditional order for the purchase of jewelry, amounting to $192. At the top of the paper in capital letters were the words: "Positively no goods consigned." "Read this order carefully." Then followed a price list of about 90 articles; then the terms of payment; then an agreement by the plaintiff to repurchase at the end of the year all goods paid for and remaining unsold, in case the purchaser had sold less than half during the year; then just above the signature, the sentence, "We have read this order and find same complete and satisfactory."

That the conduct of the agent was deliberately, intentionally fraudulent a jury would be authorized to find. The agent's talk was all about the details of a consignment. The defendant had a right to understand that the written contract embodied the substance of the oral negotiation. But the plaintiff contends that, even so, it was such negligence and folly on the part of the defendant to sign without reading a paper which he had the opportunity to read that the law will not relieve him from the consequences of his foolishness.

Whether the negligence of the defrauded party will defeat the defense of fraud has been much debated, and courts have come to different conclusions. The question has arisen more frequently in actions for deceit. And many courts have held in effect that, when the party defrauded might by the exercise of reasonable care have ascertained the truth, he had no right to rely upon the representations of the other. But in the case of fraudulent misrepresentations the rule is settled otherwise in this state. In Eastern Trust & Banking Co. v. Cunningham, 103 Me. 455, 70 Atl. 17, we said:

"If one intentionally misrepresents to another facts particularly within his own knowledge, with an intent that the other shall act upon them, and he does so act, he cannot afterwards excuse himself by saying, 'You were foolish to believe me.' It does not lie in his mouth to say that the one trusting him was negligent."

This rule was affirmed in Harlow v. Perry, 113 Me. 239, 93 Atl. 544. The rule is supported by numerous cases cited in note, 37 L. R. A. 593.

The more limited question whether one who signs a paper without reading it is so far concluded that he cannot set up that his signature was induced by a fraudulent misrepresentation as to its contents has also received varying answers. There is a general accord that a paper signed by one who cannot read or write may be defeated by proof of such misrepresentation. So, generally, when the paper is misread to the person who then signs without reading. It is also generally agreed that a negotiable promissory note in the hands of an innocent holder cannot be so defeated. And the courts in a few states, notably Indiana and Iowa, hold squarely that even between the original parties, if one who can read and write signs a paper without reading it, it is such negligence that he cannot be permitted to say that its contents were misrepresented to him. But we think the weight of authority is to the contrary.

The plaintiff relies upon Maine Mutual Marine Ins. Co. v....