Davis & Rankin Bldg. & Mfg. Co. v. Dix

• Decision Date: 16 October 1894
• Citation: 64 F. 406
• Parties: DAVIS & RANKIN BLDG. & MANUF'G CO. v. DIX et al.
• Court: U.S. District Court — Western District of Missouri

64 F. 406

DAVIS & RANKIN BLDG. & MANUF'G CO. v. DIX et al.

United States Circuit Court, W.D. Missouri.

October 16, 1894

Silver & Brown, for plaintiff.

Edwards & Davison and W. S. Pope, for defendants.

PHILIPS District Judge.

This is a bill in equity filed by the complainant, an Illinois corporation, against the respondents, numbering about 45 persons. It is predicated of a contract for the sale and construction of a creamery, which is like that found in the case of Davis v. Shafer, 50 F. 765. The creamery was to be erected, as stated on the face of the contract, 'at or near Jefferson City, or on Dix's farm. ' The respondents having failed to procure the lot of ground, with a supply of water, for the erection of the creamery, the complainant, pursuant to the provisions of the contract proceeded to select the ground at or near Jefferson City, and to dig a well for water; and, as the title to this property was taken in the name of the complainant, this bill is filed alleging compliance with and performance of the contract on the part of the complainant, and asks a decree against respondents for the contract price, and for a foreclosure of the equitable right of the respondents in said land, and for the enforcement of the decree against the same, with judgment over against them for the residue. A part of the respondents answer separately, interposing the plea of non est factum, while the other respondents, in their answer, inter alia, set up the fact of the alleged alteration of the contract relied upon by the first-named respondents, and allege this alteration was made before they signed the contract, and that they would not have executed the same had they known the same had been altered after the other respondents had so executed it. The plea of non est factum is predicated of the contention that the contract, as signed by the first named parties, described the location for the creamery plant 'at or near Jefferson City, on L. V. Dix's farm,' and the alleged alteration consists in interpolating the word 'or' just before the word 'on' so as to make the prescription read 'at or near Jefferson City, or on L. V Dix's farm. ' There is a sharp conflict of evidence between the complainant and the respondents on the question of fact whether this word 'or' was in the contract before it was signed by any of the parties. Blanchard, who was the soliciting agent who obtained the signatures of respondents to the contract, testifies that this word 'or' was inserted in the contract at the instance and request of the respondent Dix, the first signer of the contract. On the other hand, the respondents' testimony tends to show that the word 'or' was interpolated after some of the parties had signed. It is, however, quite impracticable, from the respondents' testimony, to determine with reliable accuracy after what particular signature to the contract this word was inserted. Accepting the testimony of Mr. F. W. Roger, county clerk of Cole county, it would appear that this alteration was not made later than the signature of respondent Thomas B. Mahan. Taking the evidence on the part of the respondents as true it would appear that this word 'or' was inserted to meet the objection of some of the subscribers to confining the location to the Dix farm; and Roger testifies that he heard the conversation between Mahan and Blanchard in which Mahan suggested that this change be made. How Mr. Mahan can be heard to complain of this alteration, when made at his suggestion, is not apparent. If it be conceded that this alteration was made, and that the effect in law would be to release those who signed the contract prior to the change, and that it ought likewise to operate in favor of the subsequent signers, on the ground that they executed the instrument in reliance upon its being obligatory upon all the predecessors, the important question aries, in view of all the facts and circumstances attending this transaction, ought the respondents to escape liability on the contract? This strife is a repetition of the facility and credulity exhibited by the average man in entering into such joint contracts, under the persuasive influence of canvassing solicitors, and a vague notion of either large profits that are in some way to accrue to them or the community by such projects. Too late discovering the responsibility assumed by them in signing such contract, and the probability that such enterprise will end only in disaster, they begin to cast about for some loophole of escape. The evidence in this case shows that, after this contract was executed and returned by the agent to the company at Chicago, the subscribers, in general and in particular, raised all manner of objections and reasons why they should not be held thereto. Among the groundless contentions of some of the respondents, made in the testimony, but not distinctly raised by the pleadings, is that they simply signed a piece of paper with no form of contract attached thereto, and that it was a mere subscription paper. This is wholly incredible. In the first place, it is apparent that the solicitor, Blanchard, is correct in his testimony that the papers were a unit,-- the two forms and the subscription were attached together. Aside from this, many of these respondents testify that when they signed the paper they saw the contract hereto, and over half allege in their answer that they examined its contents, and signed it after Blanchard had stated to them that they would only be held to the extent of their subscription. And what is still more glaringly contradictory is the fact that some of these parties, while testifying that no form of contract was attached, at the same time attempt the defense in their testimony that when they attached their names to the contract it was only signed 'Davis and Rankin, The First Party, per Chas. Blanchard, Special Agent,' and that Blanchard afterwards added, opposite the words 'Davis and Rankin,' the words 'Bldng. & Manfng. Co.' The paper shows on its face that the name 'Davis and Rankin' was affixed at the bottom of the contract; so it was impossible for the parties to have seen that signature without seeing that it was attached to a contract. If they gave no heed to what they were signing, with the paper before their eyes, they must realize the force and virtue of the maxim of the law, 'Vigilantibus et non dormentibus jura subveniunt. ' But suppose, as a matter of fact, that Blanchard did add the words 'Bldng. & Manfng. Co.' after 'Davis and Rankin'; how does that affect the obligation? With conspicuous capitals, the contract, on its face, over and over again shows that the 'Davis and Rankin Building and Manufacturing Company' is the party of the first part, with whom the subscribers, as 'party of the second part,' were contracting. The agent, if he neglected to add the full corporate name in signing the contract, could do that at any time before it was delivered, for it was not completely executed by the company until duly signed by the agent. About the time of the completion of the subscription list, mutterings of discontent, fomented mainly by the respondent Dix, arose among the subscribers, and some of them wrote to Blanchard to be released. Dix and Creedon wrote letters to the company manifesting dissatisfaction in a general way, whereat Mr. Woodbury, secretary of the company, was sent out from Chicago to Jefferson City to investigate the causes of discontent, and, if possible, to harmoniously adjust matters. On his arrival at Jefferson City he met subscribers in convention at the Monroe House, and saw others afterwards in detail, and particularly those interposing this plea of non est factum, when the whole grounds of grievance were canvassed and discussed. Not one of these respondents, in any letter ever written by them, or at any meeting, or in private conversation with Woodbury, suggested one word about the alleged alteration made in the contract as a reason for their unwillingness to proceed. Their whole ground of complaint, both in said letters and interviews, was predicated of other matters. They also made suggestions of compromise.

The contract contained the following provisions:

'The parties of the second part hereby agree to select and furnish suitable lands for said building, together with well, spring, or reservoir on said lot for the use of the business; and it is further understood that, in case the said second party shall fail to furnish said land and water within ten days after the execution of this contract, then the Davis and Rankin Building and Manufacturing Company, at its option, may select and furnish land and water in behalf and at the expense of the subscribers.'

As the respondents had not made the selection nor offered the ground, Woodbury informed them at that interview that as the company, under the contract, could not compel payment without performance on its part, he would proceed, under the right conferred by the contract, to select and purchase the ground and furnish the water for the plant, and complete the works. More than that, he gave them notice in writing, which recited the contract in question by reference, and the provision just above quoted, advising them that he would proceed to acquire the land etc. He proceeded thereafter in execution of the contract, bought and paid for the land, and put up and completed the creamery. Not one of the respondents at said meeting, or in said interviews, or in response to said notice, gave Woodbury or the company a word of warning about the alleged alteration in the contract, but, placing their complaints on other grounds, they stood by and suffered the company, in ignorance of the imputation that Blanchard had altered the contract before he returned it to the company, to go ahead with...