Cannon v. Burrell

• Decision Date: 03 January 1907
• Citation: 79 N.E. 780,193 Mass. 534
• Parties: CANNON et al. v. BURRELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 534

79 N.E. 780

CANNON et al. v. BURRELL.

Supreme Judicial Court of Massachusetts, Plymouth.

January 3, 1907

COUNSEL

Geo F. Wales and Chas. R. Darling, for plaintiffs.

Wm. J Coughlan and Daniel R. Coughlan, for defendant.

OPINION

LORING, J.

This is an action by the plaintiffs doing business under the name of the French & American Importing Company for goods sold and delivered under an order on that company signed by the defendant whose place of business was in Rockland. The order was made out on a printed blank, and stated inter alia that the goods were ordered 'in accordance with all the terms above specified, which we have carefully read and find it to be complete and satisfactory. We have no agreement or understanding with salesmen except as written or printed on this order.' In the 'terms of sale' 'above specified' is the following provision: 'Separate verbal or written agreements with salesmen are not binding upon French & American Importing Company. All conditions of sale must be shown on this order this sale being made under inducements and representations herein expressed and no others.'

'The defendant read, or had ample opportunity to read and understand, the contract before so signing.'

The defendant at the trial offered evidence that he was induced to buy the goods by an oral representation made by one Brainerd the plaintiff's salesman that 'he [the salesman] would give him the [defendant] exclusive sale of said goods in Rockland and vicinity.'

The defendant proved by Brainerd that he carried 'a line of samples' 'substantially similar' to those sold under the name of W. D. Cannon & Co. The salesman also testified that while the goods were 'substantially similar,' they were 'put up differently,' 'and the list of goods was different.' The salesman admitted in his testimony that 'he said he would give the defendant the exclusive sale of the French & American Importing Company goods in the boot and shoe trade in Rockland.'

The defendant then testified that on the day the goods were delivered at his store, and after they were delivered, he learned that the W. D. Cannon & Co. goods were for sale in Rockland under a contract made with the plaintiffs through the same salesman. The defendant thereupon shipped the goods back to the plaintiffs, but the plaintiffs refused to take and did not take them back.

The case was heard by a single judge without a jury. On this evidence the judge 'did not pass upon the claim made by the defendant that he was induced to enter into said contract by reason of false representations on the part of Brainerd, as [he] did not deem the question open to the defendant or material in view of the contract in writing made by the parties,' and gave certain rulings asked for by the plaintiffs, to which the defendant took exceptions. The judge found for the plaintiffs, and the case is here on these exceptions.

The defendant was bound by the terms of the contract made in writing by and between him and the...