Chi. Cottage Organ Co. v. Caldwell

• Citation: 94 Iowa 584,63 N.W. 336
• Parties: CHICAGO COTTAGE ORGAN CO. v. CALDWELL.
• Decision Date: 20 May 1895
• Court: Iowa Supreme Court

94 Iowa 584

63 N.W. 336

CHICAGO COTTAGE ORGAN CO.

v.CALDWELL.

Supreme Court of Iowa.

May 20, 1895.

Appeal from district court, Page county; A. B. Thornell, Judge.

Action on a written contract for the purchase price of a piano. Trial to a jury. Verdict and judgment for defendant. Plaintiff appeals. Reversed.T. E. Clark, for appellant.

Henry J. Baird, for appellee.

KINNE, J.

1. The plaintiff brings its action upon the following contract: “Contract. Chicago Cottage Organ Company is not responsible for any verbal or written contract or promise, other than written or printed on the face of this contract. July 29, 1894. For value received, I, the undersigned, residing in Malvern, county of Mills and state of Iowa, promise to pay to the order of the Chicago Cottage Organ Company four hundred and no hundredth dollars, at their office in Chicago, Illinois, as follows: One Packard organ, at one hundred dollars ($100.00), and balance of three hundred dollars ($300.00) in payments as follows: $75.00 December 15th, and seventy-five dollars every three months, until said three hundred dollars ($300.00) is paid in full, with interest on each payment at the rate of eight per cent. per annum from the date hereof until fully paid, with exchange, and a reasonable attorney's fee, if this note is placed in the hands of an attorney for collection. To secure the payment of the sums of money in the foregoing note contracted to be paid, together with interest, exchange, and attorney's fees as therein provided, I, the undersigned, hereby mortgage to the Chicago Cottage Organ Company one piano made by Schubert Piano Company, No. 8,989, style 18, being the property sold by said Chicago Cottage Organ Company to me, in part payment for which the foregoing note is given. And it is agreed that in case default is made in the payment of any installment of said note at the time and place therein mentioned, or if the undersigned shall sell or incumber or remove the property above described, or any part thereof, from said town or county above mentioned, without the written consent of the Chicago Cottage Organ Company, or whenever said Cottage Organ Company or assigns may so elect, the said Cottage Organ Company, or their agent or assigns, shall have the right to take possession of said property, wherever found, and proceed to sell the same at public sale as by statute in such cases provided, and apply the proceeds of said sale to the payment of the sums mentioned in the foregoing note then remaining unpaid, whether the same be due or not, together with the interest thereon, and all costs pertaining to the taking, keeping, advertising, and selling of said property, and a reasonable attorney's fee. And it is further agreed that in case said property does not sell for an amount sufficient to pay said several sums, with interest, costs, and attorney's fee, as aforesaid, then the undersigned will pay the deficiency on demand. Miss Nettie Donner. [Seal.] Witnessed by J. W. Foulks. Read the above before signing.” It is averred that defendant failed to perform said contract; that the note is due and unpaid; and that defendant failed to deliver the organ on demand. It is also averred that the said Nettie Donner has intermarried with one Caldwell. The defendant answered, admitting the signing of the contract, and that nothing had been paid thereon. She pleads that her signature to said contract, and the contract itself, were obtained from her by fraud, deception, misrepresentation, duress, and other false devices; that she made a contract with plaintiff's agent whereby she was to receive a Schubert piano, No. 8,989, style 18, on trial, to be kept by her and purchased provided she was satisfied with the same after trial. She avers that the agent pretended to put the terms of said oral agreement in writing in the note and contract in suit, and represented to her that he had done so; that she did not read the contract and note before signing it, and was not permitted to do so by plaintiff's agent; that they wrote the false contract in suit, and pretended to read it to her, and did read it to her as though she was receiving the piano on trial in accordance with the real agreement; that she took the contract, and began to read it, when the agent took it out of her hand, told her he was in a hurry to catch a train, and could read it for her, and read it wrong. She avers she knew one of the agents well, and had full confidence in him, and signed the paper relying upon the truthfulness of the statements of plaintiff's agent; that she was only 18 years old, and without business experience; that she did not know the contents of the paper, and that the note and contract was without consideration; that the piano was never delivered to her. Plaintiff, in a reply, denies all of the allegations of the answer. Avers that it was verbally agreed that the piano should be delivered at the home of defendant's mother, where defendant resided; that the piano sold defendant had before that time been examined by her, and was the one which was sent to the home of defendant's mother, and left in the house, and has been kept by defendant ever since; that, if the number does...