Creasy Corp. v. Dunning
| Decision Date | 15 January 1924 |
| Citation | 182 Wis. 388,196 N.W. 775 |
| Parties | CREASY CORPORATION v. DUNNING. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Manitowoc County; Michael Kirwin, Judge.
Action by the Creasy Corporation against Edward Dunning. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions.
The plaintiff corporation brought action to recover $203.89, the amount alleged to be due for merchandise delivered to defendant between July 20, 1921, and September 8, 1921.
In an amended answer defendant admitted receipt of the goods, and alleged payment therefor. By way of counterclaim defendant alleged that he was induced by the false and fraudulent representations of plaintiff's agent to buy a membership certificate in the plaintiff corporation; that it was falsely and fraudulently represented to him that the payment of $300 for this membership certificate would entitle him to a credit of $300, which he could use at any time toward the payment of merchandise; and that it was further represented that he could at any time drop his membership and receive back in cash any portion of this credit which had not been used.
In reply to the counterclaim, plaintiff admitted that a membership had been sold to defendant before the claim in question arose, but denied that plaintiff was entitled to the credit of $300, and denied that any fraudulent representations had been made.
Plaintiff is a corporation engaged in the wholesale grocery business. Defendant was the owner of a grocery store, which was in charge of his wife. In July, 1919, an agent of plaintiff solicited her to take out a membership in the plaintiff corporation. This membership was to cost $300, and to continue for 20 years. Its terms provided, in part, that a member could buy groceries from plaintiff at cost, plus a fixed percentage to cover operating expenses.
It appears that plaintiff's agent visited defendant's wife three times in reference to this membership, and that in the intervals between the visits defendant's wife explained the arrangement to her husband. At the third conference defendant's wife signed an application for membership, and agreed to pay $300 in installments. This application contained, among others, the following provisions:
“The subscriber may purchase merchandise on credit to the amount of money he has paid in, subject to the terms hereinafter set out, less $50, the first payment, until the full $300 is paid. He may then purchase merchandise on credit to the extent of $300. It being understood that subscriber, in purchasing merchandise in excess of his payments on this subscription, or, in excess of $300, shall accompany his order with check for any such excess, but this does not restrict subscriber from purchasing merchandise in any quantity he may desire.
This service membership shall be transferable when fully paid for to any retail merchant who shall be acceptable to the Creasy Corporation.
It is understood and agreed by the subscriber that he will not have the right to trade out this contract in merchandise. All merchandise purchased must be paid for.”
Other provisions specified that all the terms of the contract were contained in the written application, and that the agent or solicitor was not allowed to make any other contract.
In October, 1920, after the $300 had been paid, a membership certificate or service contract was issued to defendant. This contained substantially the same provisions as the application for membership, except that the clause first quoted above, in reference to purchases on credit to the extent of the sums paid in less $50, was not included. Thereafter defendant ordered goods from time to time, and paid for them in the course of business. The goods for which no payment was made were the last ordered.
Concerning the fraudulent representations alleged, defendant's wife testified:
After stating that she had read the printed application, she testified:
“And there was some clause in there about trading out in merchandise that I didn't understand, and I asked her, and she says that meant we couldn't sell our membership to any other merchant or trade it out to any other merchant.”
The foregoing testimony was admitted over the objection of plaintiff's counsel. Defendant, over objection by plaintiff's counsel, was allowed to state what his wife had said to him in reference to statements of plaintiff's agent. Defendant testified further that when he had received the membership certificate, in October, 1920, he and his wife had read it over, and had decided that its terms were in accordance with their understanding of the application for membership.
The jury found that when defendant's wife signed the application for membership the plaintiff's agent represented that whenever defendant paid in full his subscription of $300 he would have a credit to that extent, and could apply it towards the purchase of merchandise or cancel his membership, and receive back the balance not used for the purchase of merchandise. In other answers the jury found that the plaintiff's agent made these representations, knowing them to be false, and intending that defendant's wife should rely on them when she signed the contract. The ninth question was as follows:
“Is the language of said contract so ambiguous and obscure that a person of the experience, intelligence, and ability of the defendant or his wife would not discover from reading said contract that its terms conflict with the terms of said representation?”
The jury answered, “Yes,” as to both defendant and his wife.
The tenth question was as follows:
Judgment was ordered dismissing the complaint, and awarding to defendant $96.11, with interest and costs, on his counterclaim. This was the amount paid for the membership, less the claim in suit.
Other facts will be stated in the opinion.
Nash, Nash & Ledvina, of Manitowoc, and Kittell, Jaseph & Young, of Green Bay, for appellant.
Kelley & Wyseman, of Manitowoc, for respondent.
JONES, J. (after stating the facts as above).
[1][2] The trial court ruled that the first paragraph quoted in the statement of facts was so ambiguous as to permit oral testimony showing the understanding of the defendant's agent. That understanding is stated in the testimony above quoted, and is summarized in the following question in the special verdict:
“At the time when defendant's wife, Mrs. Margaret Dunning, acting as his agent, signed his name to the membership or service contract, did plaintiff's agent, Miss Peterson, state and represent to Mrs. Dunning in substance that whenever the defendant paid in full his subscription of $300 on that contract he would thereby have a credit of that sum with the plaintiff corporation, which credit the defendant could apply in payment of the purchase price of any merchandise that he might thereafter buy from plaintiff; and that whenever said subscription was paid in full the defendant, if he wished to do so, could thereafter at any time discontinue his membership in the...
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... ... Cotton Oil Co. v. Southern Ry. Co., (S. C.) 88 S.E ... 360-362; Creasy Corp. v. Dunning, (Wis.) 196 N.W ... 775-778; McCarter v. Zeller, (Cal.) 170 P. 636-637; ... ...
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Parsons v. Associated Banc Corp
...rule that those who sign written instruments are presumed to know their contents and their legal effect." Creasey Corp. v. Dunning , 182 Wis. 388, 396, 196 N.W. 775 (1924). "Men, in their dealings with each other, cannot close their eyes to the means of knowledge equally accessible to thems......
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...B. Colt v. Cousino, 226 Mich. 518, 198 N. W. 222), and in order to prove that a contract never had legal existence (Creasey Corp. v. Dunning, 182 Wis. 388, 196 N. W. 775). “What is fraud but the obtaining an advantage over another by deception, trick, or artifice? * * * He who intended at t......
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Minneapolis Threshing Mach. Co. v. Huncovsky
... ... 222; and in order to ... prove that a contract never had legal existence; Creasey ... Corp. v. Dunning, 182 Wis. 388, 196 N.W. 775. "What ... is fraud but the obtaining an advantage over ... ...