Brenard Mfg. Co. v. Sumrall

• Decision Date: 25 May 1925
• Docket Number: 24976
• Citation: 139 Miss. 507,104 So. 160
• Court: Mississippi Supreme Court
• Parties: BRENARD MFG. CO. v. SUMRALL. [*]

104 So. 160

139 Miss. 507

BRENARD MFG. CO. v. SUMRALL. ^[*]

No. 24976

Supreme Court of Mississippi

May 25, 1925

Division B

1 SALES. Experienced business man, who signed contract and notes, held not entitled to submission to jury of whether he was fraudulently induced to sign contract by misrepresentations that it was contract of agency.

Experienced business man, who signed contract for purchase of phonographs and notes for purchase price, after several hours of discussion of transaction with seller's agent, was not in action on notes, entitled to submission to jury of question of whether he had been fraudulently induced to sign contract by misrepresentation that he was signing contract of agency.

2. EVIDENCE, Written contract of purchase cannot be contradicted by proof of contemporaneous oral understanding.

Written contract for purchase of phonographs could not be contradicted by proof of contemporaneous oral understanding that contract was in fact one of agency.

3 SALES. Facts held to establish ratification by buyer of contract alleged to have been procured by fraud.

Buyer who accepted goods and copies of notes, and advised seller that goods were satisfactory, and who made effort to sell them to customers, ratified contract, and could not defend action on notes on ground that he was induced to sign contract by fraudulent representations that contract was one of agency.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON, Judge.

Suit by the Brenard Manufacturing Company against R. E. Sumrall. Judgment for defendant, and plaintiff appeals. Reversed and judgment rendered.

Judgment reversed.

T. E. Salter, for appellant.

The propositions to which I wish to call the court's special attention are these:

I.

The evidence adduced on the trial does not establish nor even tend to establish, defendant's plea of fraud. The gravamen of defendant's plea of fraud was that he refused to purchase the Claxtinolas; that thereupon, Walker agreed, orally, to appoint defendant, plaintiff's agent at Sumrall for the sale of these machines upon condition that defendant grant plaintiff floor-space in his store for the machines and that he exhibit and display same; that the defendant reluctantly consented thereto, and that the said Walker waited until the train, on which he was to depart, was at the depot, and then, when defendant did not have time to read it, Walker presented the contract which the said Walker assured him was a contract appointing him agent of the plaintiff. The only fraud attempted to be set up in said plea was the act of Walker in presenting the written contract at a time when defendant did not have time to read it, and in then assuring defendant that the contract was one making the defendant the agent of plaintiff for the sale of these machines.

But what is the proof on this matter as shown by the record of the trial? The proof shows that Walker was in and around defendant's store discussing the matter some two or three hours. That on this occasion, he not only signed the contract, but that he executed six promissory notes, all of which he delivered at the same time to the agent, Walker. That he executed these paper's deliberately, sitting down at his desk or counter, under a bright electric light; that when he signed the only paper, which the witness, Ollie Stringfellow, saw him execute, and therefore presumably, the last he did sign, the train had not reached the depot, but was blowing for the crossing. The defendant's son, a witness in his behalf, testifying as to what was said and done, stated that the agent simply handed the papers to his father and that he signed them. This record discloses that defendant is an experienced business man, a general merchant.

The character of the papers themselves, the circumstances under which they were executed, and defendant's subsequent dealings with the property, utterly refutes his plea that he did not know that he was executing notes, and that his signature was acquired by the fraud of Walker.

The proved facts do not constitute fraud in law and the legal effect of the court's action was to permit oral testimony to vary the terms of a written instrument. 26 C. J. 1062.

II.

Even though the defendant had made out a perfect defense of fraud, in legal contemplation, it would have availed him nothing, for the record discloses affirmatively that, if the fraud existed and was proven, yet the defendant waived the fraud and ratified the contract by accepting the goods upon their arrival, by furnishing the mailing list called for in the contract, opening up, exhibiting, displaying and using every possible, honorable, means to sell them, retaining them in his possession and exercising full authority and control over them from February 11, 1922, to April 15, 1922.

If a party entitled to rescind a contract for fraud fails to exercise his right within a reasonable time after the discovery of the fraud, he will not be permitted to rescind, the delay being construed as an affirmance of the contract. 1 A. & E. Ann. Cases 910; Goodall v. Stewart, 65 Miss. 157; Brown v. Norman, 65 Miss, 369.

What is a reasonable time or undue delay where the facts are not disputed is a question of law. Reasonableness in such cases belongeth to the knowledge of the law, and it is therefore to be decided by the court. Morgan v. McKee, 77 Pa. St. 228; Bacon v. Green, 36 Fla. , 18 So. 870; Collins v. R. R., 104 Ala. , 16 So. 140.

It was the duty of the court in the instant case, to apply the principles of law enunciated in those cases, and to exercise its knowledge and prerogative, by granting the motion for a peremptory instruction. This were true even though defendant had not admitted on the witness stand that he did not repudiate the contract within a reasonable time. We again insist that the court should have granted the peremptory instruction.

J. W. Shanks, for appellee.

Learned counsel for plaintiff seems to labor under a misapprehension as to just what the testimony of defendant and his...