Eldorado Jewelry Co. v. Darnell

• Citation: 135 Iowa 555,113 N.W. 344
• Parties: ELDORADO JEWELRY CO. v. DARNELL.
• Decision Date: 17 October 1907
• Court: United States State Supreme Court of Iowa

135 Iowa 555

113 N.W. 344

ELDORADO JEWELRY CO.

v.DARNELL.

Supreme Court of Iowa.

Oct. 17, 1907.

Appeal from District Court, Madison County; Jas. D. Gamble, Judge.

Action on an order for jewelry. Fraud was pleaded as a defense. Judgment was entered against the plaintiff, from which it appeals. Affirmed.Leo. C. Percival, for appellant.

Wilkinson, Smith & Wilkinson, for appellee.

LADD, J.

The defendant signed an order for the purchase of certain jewelry, and, upon suit for the price, set up as a defense that it was procured by fraud, in that plaintiff's agent had represented that the order was for goods to be sold on commission by defendant as agent, and for which he was to remit only a percentage of the proceeds after sale to the company, which should retain title. The evidence was such that the jury might have exonerated him from the charge of negligence in signing the order, and have found the allegations of fraud established. The agent who procured the order transmitted it to the company immediately, and it was accepted the day after given. On the next day defendant wrote the company not to send the jewelry. Four letters written by him were introduced in evidence, the last dated November 9, 1904, in which he indicated his wish to avoid the order and not take the property, but in none did he charge any dishonesty in the procurement of the order, or notify the company that he elected to rescind the contract. It will thus be seen that the order had been accepted before he undertook to countermand it, and that he has never elected to rescind. Indeed, the purport of his letters was to recognize the order as valid, rather than repudiate it. So that, although the court submitted the isue as to whether there was a rescission by the defendant to the jury, there was no evidence to sustain such a finding, and the only remaining question for our consideration is whether rescission is necessary in such a case. It is conceded that, if the order was voidable merely, as when procured by fraud, defendant had his election to rescind and refuse to receive the goods, or accept them and recoup in damages; but if, under the finding of the jury, the order was void, rescission was unnecessary to defeat plaintiff's claim. To render the order void, it must have been signed by mistake; that is, under the supposition that it was an instrument of another or different character. This would be no less a mistake because induced by fraud. The distinction should be kept in mind, for an agreement procured by fraud is voidable merely, while one signed by mistake is no agreement at all. 4 Am. & Eng. Ency. of Law (2d Ed.) 157. The rule is found stated as far back as Thoroughgood's Case, 2 Rep. 9b, in the time of Lord Coke: “That although the party to whom the writing is made, or other by his procurements, doth not read the writing, but a stranger of his own head read it in other words than it in truth is, yet it shall not bind the party who delivereth it; for it is not material who readeth the writing, so as he who maketh it to be a layman, and being not lettered, be (without any covin in himself) deceived, and that is proved by the usual form of pleading in such a case; that is to say, that he was a layman and not learned, and that the deed was read to him in other words, etc., generally, without showing by which it was read.” Numerous cases illustrate this principle. Thus in Stoever v. Weir, 10 S. & R. 25, the defense that the signature to the single bill sued on was obtained by falsely reading it as a receipt was sustained. In Foster v. McKinnon, L. R. 4 C. 704, the signature was procured by representing that a...