Griesa v. Thomas

• Decision Date: 09 December 1916
• Docket Number: 20463[1]
• Citation: 161 P. 670,99 Kan. 335
• Parties: GRIESA ET AL. v. THOMAS.
• Court: Kansas Supreme Court

161 P. 670

99 Kan. 335

GRIESA ET AL. v. THOMAS.

No. 20463^[1]

Supreme Court of Kansas

December 9, 1916

Syllabus

Special findings of fact concerning a contract for the purchase of speciosa catalpa seedlings examined, and held, that plaintiffs’ motion for judgment thereon was properly denied.

It is needless to examine a trial court’s instructions to the jury touching the measure of damages for breach of contract when a defense of misrepresentation and fraud in procuring the contract is successfully maintained, and no damages are recoverable.

Where one of the defenses to a written contract for the purchase of catalpa seedlings was that the defendant did not have a fair opportunity to read the contract, it was not error to permit oral testimony that the vendor had assured the vendee that the latter would have the privilege of countermanding the order, where the jury were carefully instructed that the terms of the written contract were binding on the defendant unless the jury found that he did not have a fair opportunity to read it before he signed it.

The ordinary rule that a written contract speaks for itself and that parol evidence to show the oral statements representations, and negotiations of the parties which led up to the contract, is inadmissible, has no application to written contracts procured by the fraudulent representations of one of the parties and which were relied upon by the other.

The rule that representations as to the market value of an article or commodity are mere expressions of opinion and not statements of fact is limited in its application to familiar articles and commodities of commerce whose market value is easily ascertainable, and does not apply to sales of articles or commodities whose market value is difficult of determination, especially when such articles or commodities are offered for sale by a vendor who is familiar with their true worth and real market value to the vendee who is entirely ignorant thereof and who buys in reliance on the vendor’s positive statements concerning the market value.

Instructions covering the question whether representations as to market value were positive statements of fact or mere expressions of opinion examined and approved.

Appeal from District Court, Harvey County.

Action by W. S. Griesa and another, partners, etc., against David Thomas. From a judgment for defendant, plaintiffs appeal. Affirmed.

Gorrill & Asher, of Lawrence, and vonder Heiden & Morgan, of Newton, for appellants.

Branine & Hart, of Newton, for appellee.

OPINION

DAWSON, J.

The plaintiffs sued the defendant for the contract price of certain catalpa seedlings. The contract was in the form of a printed and written order and signed by the defendant. In the body of the text in prominent capitals, and above the defendant’s signature, were the words:

"I AGREE THAT THIS ORDER IS NOT SUBJECT TO COUNTERMAND."

On the margin in plain type, it was printed:

"Our Agents are not authorized to vary from the printed terms hereof. Read the notice at the bottom of this blank."

At the bottom of the blank, following the schedule of trees and seedlings ordered, was the following:

"The signer is notified that agents are not authorized to promise to plant stock, collect pay for orders in advance, to promise time or privilege of countermanding.

Read terms of Contract.

POSITIVELY NO COUNTERMANDS ACCEPTED OR CONDITIONAL ORDERS TAKEN."

The seedling stock was shipped to defendant. He refused to accept, and, as the stock was perishable, it was advertised and sold by plaintiffs at auction for a nominal sum, and the plaintiffs’ action is for the difference between the contract price and the sum realized by the sale plus necessary and pertinent expenses.

The defendant’s answer alleged that prior to signing the order it was expressly agreed between him and plaintiffs’ general agent that the order would be subject to countermand and cancellation by notifying the plaintiffs at any time before the trees were actually shipped, and that defendant relied wholly upon plaintiffs’ agent to write and prepare the order, and that he had no opportunity to read the order, and that defendant signed the order relying wholly upon these statements of plaintiffs’ agent and upon the agreement between him and the agent. The answer also alleged:

"(4) That about the time of the signing of said order and prior thereto and subsequent thereto said plaintiff and its agent were engaged in a general plan and scheme to cheat and defraud parties throughout the state of Kansas by false and fraudulent representations, and as a part of such plan said agent made false and fraudulent representations that the prices for which said plaintiff was offering these for sale was an exceedingly low price and was much lower than such trees could be bought or purchased for at any nursery or any market in the United States, and plaintiff’s agent pretended to have a letter direct from plaintiff, which he purported to read from, to the effect that said agent was not authorized to sell such trees after the end of that week for less than seven cents each, and that when plaintiff advanced its price that said trees would be two cents cheaper than like or similar trees could be bought or purchased at any nursery or at any place in the United States. That yearling speciosa catalpas would in three years develop into fence posts, and in five years to telephone poles, and in seven years to telegraph poles and railroad ties. That it would be necessary for said defendant to order 5,000 in order to get 1,000, inasmuch as plaintiff did not have sufficient catalpas with which to fill all orders. That plaintiff did no jobbing business and that they procured catalpa seed and raised all the stock at or near the city of Lawrence. That plaintiff’s agent had just purchased a half section of land in Ford county, Kan., and that he intended to and was going to plant the whole of same in catalpa trees.

(5) That all of said statements and representations were false, and in fact the regular market price of yearling speciosa catalpas such as plaintiff’s agent was selling and such as plaintiff shipped was from $5 to $8 per thousand, and that plaintiff had a large stock and could fill defendant’s order for 5,000 trees. That it would take said catalpas 6 to 8 years to mature to fence posts and 15 years to mature to telephone poles and 18 to 20 years to mature to railroad ties or telegraph poles, and that plaintiff did not grow all its trees at or near Lawrence, Kan., and that plaintiff’s agent did not have or purchase the half section of land in Ford county, Kan., for the purpose of planting catalpa trees, and that said letter that said agent claimed to have and read from was false and fraudulent and fictitious and, after selling said trees to said defendant, said agent continued to sell trees at the same price, and that said agent read from said letter for the purpose of inducing defendant to purchase said trees then and there.

(6) That said defendant has never had or grown any catalpas and was not familiar with the length of time it would take same to mature as aforesaid, and did not know nor was familiar with the market price or the reasonable price of same, and that he relied implicitly upon such said representations.

(7) That afterward, when defendant learned that said statements were false and fraudulent, and acting in accordance with said contract, defendant notified said plaintiff not to ship said trees on September 23, 1914, countermanded and canceled said order."

The cause was tried to a jury and a general verdict rendered for defendant. Certain special questions propounded by plaintiff were answered:

"Question 7. * * * State whether or not at the time of signing said order any misrepresentations in regard to said nursery stock were made to said defendant by A. L. Dye? Answer: Yes.

Question 8. If you answer the last question in the affirmative, then state fully what such misrepresentations were? Answer: As to time it takes to grow fence posts, telephone and telegraph poles."

Also certain questions submitted by defendant:

"No. 1. Did the plaintiffs’ agent represent to the defendant that yearling speciosa catalpas could not be bought for less than $20 per thousand? Answer: Yes.

No. 2. * * * Did the plaintiffs’ agent know that speciosa seedlings could be obtained for less than $20 per thousand. Answer: Yes.

No. 3. * * * Did not the plaintiffs’ agent know that speciosa seedlings could be obtained in the market for less than $20 per thousand? Answer: Yes.

No. 4. Did plaintiffs’ agent make false misrepresentations to the defendant as to the value of yearling speciosa catalpas? Answer: Yes.

No. 5. Did plaintiffs’ agent make false representations to defendant as to the length of time speciosa catalpa seedlings would develop into a size so that the same could be cut and used for a fence post, a telephone pole, or telegraph pole? Answer: Yes.

Q. 6. * * * Did defendant rely upon said false representations in the signing of said order? Answer: Yes.

Q. 7. Did the defendant have reasonable opportunity to examine or read the order in question? Answer: Yes."

Considering the principal errors assigned in the order of their presentation, it does not seem that the plaintiffs were entitled to judgment on the special finding. True, the question whether defendant had a fair opportunity to sign the order was answered in plaintiffs’ favor, but another good and sufficient defense--that of fraud and misrepresentation--was pleaded and apparently proved. It is elementary that a contract entered into through the fraud and misrepresentation of one of the parties and relied on by the other is voidable at the instance of the party defrauded. Hart v. Haynes,...