Colonial Jewelry Co. v. Jones

• Decision Date: 15 October 1912
• Citation: 127 P. 405,36 Okla. 788,1912 OK 618
• Parties: COLONIAL JEWELRY CO. v. JONES.
• Court: Oklahoma Supreme Court

127 P. 405

36 Okla. 788, 1912 OK 618

COLONIAL JEWELRY CO. v. JONES.

Supreme Court of Oklahoma

October 15, 1912

Syllabus by the Court.

It is a well-settled rule of this court that where the evidence on a material fact, or controlling issue, is conflicting, this court will not review the same to ascertain where the weight lies; but, if there is evidence reasonably tending to support the finding, the same will not be disturbed by this court on appeal.

It is competent to show by parol that a contract was procured by fraud and misrepresentation, where such fraud and misrepresentation is pleaded and relied upon as a defense.

Commissioners' Opinion, Division No. 1. Error from Jefferson County Court G. M. Bond, Judge.

Action by the Colonial Jewelry Company against A. J. Jones for money due on contract. Judgment for defendant, and plaintiff brings error. Affirmed.

The Colonial Jewelry Company sued the defendant, A. J. Jones, to recover the sum of $120, alleged to be due by reason of a certain written contract, dated September 23, 1909, wherein Jones agreed to purchase from it a quantity of jewelry. The contract is pleaded, and its execution admitted by Jones, but he avers that the execution of the same was procured by fraud and through the willful misrepresentations made by one A. B Jones, who, from the record, seems to have been, not only the salesman who took the order, but the sole proprietor of the Colonial Jewelry Company, as may be gleaned from his testimony found on page 17 of the case-made, and which is as follows: "Q. Who called on the defendant, A. J. Jones and procured the order for the goods described in the contract sued on in this case? A. I did. Q. Who composed the Colonial Jewelry Company at the time the order was given by A. J. Jones for the jewelry described in the contract sued on? A. Myself, A. B. Jones. Q. Was there any one else interested in the Colonial Jewelry Company except yourself at the time of taking this order? A. There was not." The answer of the defendant sets out fully the details and particulars of the alleged misrepresentations. The allegations of fraud in the answer were unchallenged by demurrer, or by motion to make more definite and certain, and were contradicted in the reply of the jewelry company only by a general denial. On the issues thus joined, the cause was tried to a jury, and resulted in a verdict in favor of the defendant. From the judgment entered on the verdict the plaintiff appeals.

N. C Peters, of Waurika, for plaintiff in error.

Bridges & Vertrees, of Waurika, for defendant in error.

ROBERTSON C. (after stating the facts as above).

There is but one question in this case, and that is, Was the execution of the contract of purchase, sued on in this case obtained by fraud? If it was, the judgment is correct, and must stand; if not, then it should be reversed. The pleadings are amply specific to inform all parties concerned as to the exact issues in the case. No objection to the sufficiency of the allegations of fraud as charged in the answer appears anywhere in the record. Counsel for plaintiff makes a common mistake in assuming that the purpose of admitting parol testimony on the subject of the contract was to alter, vary, or in some manner change the terms of a written instrument. Such was not the object of this testimony. The real and only purpose sought was to determine whether or not the instrument sued on and offered in evidence was in fact a contract, made and entered into by the parties freely and uninfluenced by the willful and false misrepresentations of either. For that purpose parol evidence is always admissible, and it was for that purpose alone that it was received in this case. From the record it appears that the representative of the jewelry company, after failing to sell Jones on his first visit, returned later in the day, told the merchant that he might take the goods, put them in his house, and report at the end of every two months the amount sold and keep his commission out and send the jewelry company the balance, that he would only have to pay for the goods as he sold them, and that he would only have to remit once in every two months. Defendant in error refused to sign the contract until he had been assured by the representative of plaintiff in error that he was contracting no obligation...