Folkes v. Pratt

• Decision Date: 03 April 1905
• Court: Mississippi Supreme Court
• Parties: MAHALA E. FOLKES v. WALTER PRATT ET AL

38 So. 224

86 Miss. 254

MAHALA E. FOLKES v. WALTER PRATT ET AL

Supreme Court of Mississippi

April 3, 1905

FROM the circuit court of Copiah county, HON. DAVID M. MILLER Judge.

Walter Pratt and another, the appellees, were plaintiffs in the court below; Mrs. Folkes, the appellant, was defendant there. From a judgment in favor of the plaintiffs the defendant appealed to the supreme court.

On March 18, 1902, appellees, through their traveling salesman sold to appellant a consignment of perfumery, toilet articles, etc.; and appellant on the same day signed a written order for the purchase, which order was the basis of this suit. The written order contained the following stipulations or warranty:

"All goods are warranted to be same in quality, material, and in all other respects as samples shown by salesman. The purchaser agrees to examine and inspect the goods at once upon their arrival at destination, and if said goods fail to comply with said warranty, he shall within five days from the date of arrival at destination give detailed written notice of such failure by registered letter to Walter Pratt Chicago, Ill., or, otherwise, all warranty of said goods is waived. Goods cannot be returned for credit on account except as herein provided. We deliver all goods to purchaser by delivering them to the transportation company herein specified, purchaser to pay all transportation charges. . . . This order not subject to countermand."

The order also provided that the goods should be shipped in care of a designated railway company. It further provided that any goods contained in the order might be returned for exchange. On the day the order was given, it was wired in to appellees and on the same day appellees delivered the goods to the railway named in the order. Plaintiffs introduced evidence to the effect that the goods shipped were of the quality ordered. Defendant offered to show that the goods purchased were not the quality of goods contemplated by the contract; that they were not the goods represented, and that plaintiffs defrauded defendant by the substitution of goods not of the quality ordered, and that complaint was made as soon as the fraud was discovered; that the character of the goods was such that five days' time is unreasonable for proper examination. This was objected to because defendant did not undertake to show that within five days from the arrival of the goods she gave written notice, as required by the written contract ordering the goods. This objection was sustained.

Reversed and remanded.

M. S. McNeil, and Robert B. Mayes, for appellant.

It will be seen that in the attempt to sell these articles the appellees (plaintiffs in the court below) have prepared and printed a very adroitly drawn contract, in which there is effort made on their part to so bind the purchaser as that he will be estopped from asserting that any fraud has been perpetrated upon him. We call the court's attention to these facts for the purpose of emphasizing that, in our judgment, in the very beginning it was the deliberate purpose of this concern to send down fake perfumery and bind the purchaser by a pretended delivery to the railroad company on the very day that this contract is purported to be signed and wired in by the representative; and all these preparations made by the appellees, making ready for a purchaser, so that when they do find one they will have him so hidebound that it will be impossible for him to free himself.

We call the court's particular attention to another badge of fraud in this case, and it is this: The original telegram was called for, and it will be seen that it is dated at Crystal Springs, on March 18, 1902. It purports to be a cipher telegram, and shows on its face either to have been sent from Crystal Springs, at 4:03 P.M., or, most probably, received at Iowa City at 4:03 P.M. Yet these appellees say that they received this telegram on this date at that hour, and claim to have delivered to the railroad company after that hour, 4:03 P.M., the goods called for under this contract. This haste can prove but one thing--that it is a haste which is brought about by guilt. It is a haste for the sole purpose of perpetrating a fraud, and it is a haste to get rid of goods and to put them at the risk of a purchaser, and to do everything in their power to make it impossible for him to countermand his order, knowing that the goods are fraudulent, intending to defraud, and now in court trying to accomplish that purpose.

We cannot conceive of any other possible defense that we could have, or any other way in which we could show fraud, other than to show that the appellees had contracted to sell one article of goods by sample and had fraudulently substituted another; and yet, notwithstanding this, on the objection of counsel for appellees, the court excluded this testimony and gave a peremptory instruction for the plaintiffs in the case!

Appellant then offered to show that the goods ordered from these parties were not the goods represented, and offered to show that plaintiffs in this case defrauded the defendant by the substitution of the quality of goods not contemplated by the contract and not ordered, and that while the contract allowed five days' time to examine, not from the date of the receipt of the goods, but from the date of their arrival, that five days' is unreasonable time for an investigation of the character of the goods. The court declined to allow this proof, and declined to allow appellant to show that there had been a substitution of the quality of the goods not contemplated by the contract and not ordered; and yet the court undertakes to hold appellant simply because the contract is in writing. In support of our contention we cite the court to Strauss v. Furniture Company, 76 Miss. 343; Howie v. Platt, 83 Miss. 15 (s.c., 35 So. 216).

R. P. Willing, Jr., for appellees.

The lower court did not err in refusing to allow appellant to show by witnesses, Cox and McCluney, that the goods failed to comply with the warranty contained in the contract of sale or order of purchase. The order signed by the appellant contained the express stipulation that the purchaser agreed to examine and inspect the goods at once upon their arrival at destination, and if said goods should fail to comply with said warranty, the purchaser should, within five days from date of arrival at destination, give written notice of such failure by registered letter to appellees, at Chicago, Ill.; otherwise, all warranty of said goods is waived.

This express condition of the warranty was not complied with by the appellant, and therefore the warranty that the goods should correspond with samples shown by salesman was waived by appellant, and the court properly refused to allow testimony to show that the goods did not correspond with samples.

"The terms of the express contract of sale are to govern in all places, and the vendee's right of action for a breach of warranty does not exist until he has discharged the condition precedent imposed by such contract." 28 Am. & Eng. Ency. Law, 830; Nichols v. Hail, 4 Neb., 210; Reynolds v. Roberts, 57 Vt. 392; Himes v. Keihl, 154 Past., 190; Hills v. Dannister, 8 Cow., 31; McCormick v. Basal, 50 Iowa 523.

"The failure to comply with reasonable conditions imposed by the contract of sale is fatal to the vendee's remedy for a breach of the warranty, whether he attempts to exercise it by action on the warranty or by settling up the breach of warranty in defense of an action for the price of the...