Chatham v. Jones
| Decision Date | 14 February 1888 |
| Citation | 7 S.W. 600 |
| Court | Texas Supreme Court |
| Parties | CHATHAM <I>et al.</I> v. JONES. |
Spencer Ford, for appellants. K. R. Craig and Henderson & Butler, for appellee.
The appellants brought this suit to recover damages for the alleged breach of a written contract for the delivery of machinery at McKinney, Tex., to be used by appellee in operating a gin seven and one-half miles from that place. The contract, as offered in evidence, provided that the machinery should be delivered on or about September 1, 1884. But appellee claimed that the contract was for delivery on 20th of August; that it was reduced to writing by appellants' agent; that appellee was unable to read it, and that said agent read it to appellee; that the machinery should be delivered at McKinney on 20th of August, 1884. The contract, which was in the form of an order, was sent to the appellants at Bryan to be filled by them. Appellee went to McKinney on 20th of August, and for several succeeding days, for the purpose of receiving the machinery. Appellants, upon being informed that it was the understanding of appellee that the machinery was to be delivered on 20th, forwarded portions of it; but the whole being necessary for appellee's purpose, he, on 2d of September, notified appellants that he could wait no longer, and returned the parts of the machinery that he had received; and for this the suit is prosecuted. Appellee claimed that appellants' agent either fraudulently changed the date for the delivery of the machinery, as written in the contract, from August 20th to "on or about September 1st," or that he fraudulently read it as that the machinery should be delivered on 20th of August; that he was thereby deceived and misled; that time was of the essence of the contract, and that he was not bound by its terms as appellants allege them to be. Appellants assert "that the court erred in refusing to charge that if appellee had an opportunity and the capacity to read the contract, chose to rely upon what appellants' agent Stalnacher said about it, and so choosing signed it, he is now estopped and precluded by his own negligence from claiming that said contract is not binding on him. Appellee testified that he did not read the contract, because he could not do so without his spectacles; that he did not have them with him, and he could not read without them, unless the writing was plain. Whether certain facts constitute negligence is, as a rule, in this state, a question of fact, however it may considered elsewhere; the only exception being where the statute declares the act done to be negligence, or it is so clearly contrary to the dictates of prudence that the court would not hesitate to say that it was negligent. Railway Co. v. Murphy, 46 Tex. 356. There is no law of the state declaring the failure to read a contract, under the circumstances of this case, negligence; and a charge to that effect would clearly be on the weight of the evidence. Whether appellee was guilty of negligence was fairly presented to the jury as a question of fact in the general charge of the court.
It is also asserted that "the court erred in thirteenth section of its charge to the effect that if the jury found that the real contract was for delivery on August 20th, 1884, but that defendant waived the right to have it delivered on that day, and that if plaintiffs delivered the same in a reasonable time after said date, to find for plaintiffs, etc.; because such waiver, if made at all, was a waiver of any claim of fraud or misrepresentation on part of plaintiffs, and operated as a recognition of the contract as signed, and plaintiffs would have until September 1, 1884, and a reasonable time thereafter, to deliver said machinery." We do not think that the fact that when defendant waived the right to have the machinery delivered on 20th of August can be construed to mean that plaintiffs should have until the 1st of September...
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Grieve v. Grieve
...the result of the lack of diligence of defendants in error in examining the contract before signing. (Con v. Hagan, 55 S.W. 325; Chatham v. Jones, 7 S.W. 600; Taylor Fleckenstein, 30 F. 99; Bowers v. Thomas, 22 N.W. 710; Brooks v. Mathews, 3 S.E. 627; Warden v. Reser, 16 P. 60; Wilson v. Mo......
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Texas City Transp. Co. v. Winters
...as will deprive the maker of the instrument of equitable relief from the consequences of the fraudulent representations. Chatham v. Jones, 69 Tex. 744, 7 S. W. 600." Conn v. Hagan, 93 Tex. 339, 55 S. W. To the same effect are the following cases: Western Union Tel. Co. v. Walck, 161 S. W. 9......
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Strange v. Cooper Grocery Co.
...p. 297 (60 S. W. 313), quoting with approval from the case of Albany City Savings Institution v. Burdick, 87 N. Y. 40; Chatham v. Jones, 69 Tex. 744, 749, 7 S. W. 600; Cooper Grocery Co. v. Rowntree (Tex. Civ. App.) 260 S. W. 333, 334; Strickel v. Brownfield State Bank (Tex. Civ. App.) 250 ......
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Kahanek v. Kahanek, 11762.
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