History Co. v. Dougherty

• Decision Date: 30 January 1892
• Docket Number: Civil 279
• Citation: 3 Ariz. 387,29 P. 649
• Parties: THE HISTORY COMPANY, a Corporation, Plaintiff and Appellant, v. J. W. DOUGHERTY, Defendant and Appellee
• Court: Arizona Supreme Court

29 P. 649

3 Ariz. 387

THE HISTORY COMPANY, a Corporation, Plaintiff and Appellant, v. J. W. DOUGHERTY, Defendant and Appellee

Civil No. 279

Supreme Court of Arizona

January 30, 1892

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James W. Wright Judge.

Reversed.

Ross &amp Van Horn, for Appellant.

A mere allegation of fraud is insufficient. Facts constituting fraud must be specifically alleged and proved.

That the agent "forthwith did substitute" the writing sued on for the oral contract, means nothing more than that he asked the defendant to witness by his signature the contract just made. His signature was to a writing "which serves as a proof of the obligation." It is not a substitution for the contract, but is the evidence of the contract.

Actual fraud in securing defendant's signature would avoid the contract. But while the defense charges "fraud," "intent to circumvent," and the like, no allegation is made of facts sufficient to maintain fraud. Tepoel v Bank, 24 Neb. 815, 40 N.W. 415; Hazard v. Griswold, 21 F. 178.

Granting that the oral contract was for one book only, that the agent "did forthwith present" to defendant "for his signature a certain other and different contract," was not fraudulent unless, the defendant being unable to read, the contract was misread to him, or its contents misrepresented to him by some one in whom he had the right to repose confidence. This he fails to allege, or even to allege that the agent made any misrepresentation, or did anything by word, act, or silence to induce him to believe it was a contract for one book only, or to indicate its contents, or to prevent his reading it. Nor does he say that he had no opportunity to read the contract, or that any device, artifice, or trick was resorted to to prevent his reading it. Nor does he claim to have relied on word or act on the part of the agent as to the contents of the contract, but solely and simply upon his impression. Neither does he make showing of any fiduciary relation, or of right to repose confidence in the agent as his agent, friend, or principal. Neither does he allege that the enforcement of the contract will work him any injury. The authorities are that a person is bound to know the contents of a contract or instrument he signs, unless he can bring himself within one of the exceptions just noticed. Penny v. Jackson, 85 Ala. 67, 4 So. 720; Barnes v. Mahannah, 39 Kan. 87, 17 P. 319; Metropolitan etc. Co. v. Esche, 75 Cal. 513, 17 P. 675; McKinney v. Herrick, 66 Iowa 414, 23 N.W. 767; Wallace v. Chicago etc. Ry. Co., 67 Iowa 547, 25 N.W. 772; Taylor v. Fleckenstein, 30 F. 99; Bell v. Ryerson, 11 Iowa 233, 77 Am. Dec. 142; Ward v. Packard, 18 Cal. 392; Morrison v. Lods, 39 Cal. 381; McEwan v. Ortman, 34 Mich. 325; Murrell v. Murrell, 2 Strob. Eq. 148, 49 Am. Dec. 664; Hawkins v. Hawkins, 50 Cal. 558; Parsons on Contracts, 773; Bigelow on Fraud, 525; Story's Equity Jurisprudence, 191; Kerr on Fraud and Misrepresentation, 84.

For cases totidem pedibus with the case at bar, see, Hazard v. Griswold, 21 F. 178, and McCormick v. Molburg, 43 Iowa 561.

The burden of proof is on the defendant to establish the facts constituting fraud. Wallace v. Mattice, 118 Ind. 59, 20 N.E. 497; Towsy v. Shook, 3 Blackf. 267, 25 Am. Dec. 108; Nichols v. Patten, 18 Me. 231, 36 Am. Dec. 713; Bartlett v. Blake, 37 Me. 124, 58 Am. Dec. 775; Bunch v. Smith, 15 Tex. 219, 65 Am. Dec. 159; Martin v. Foster, 83 Ala. 213, 3 So. 422; Moses v. Katzenberger, 84 Ala. 95, 4 So. 237.

And as against the contract and the supporting evidence of the agent there must be more than defendant's evidence alone. Jones v. Degge, 84 Va. 685, 5 S.E. 799.

And where the matter is in doubt the presumption raised by the contract must prevail in its favor. Martin v. Foster, 83 Ala. 213, 3 So. 422.

The written contract supported by the testimony of the agent is conclusive unless contradicted by two witnesses or their equivalent. Sylvius v. Kosek, 117 Pa. St. 67, 2 Am. St. Rep. 645, 11 A. 392.

The usual rule that a verdict will not be set aside unless clearly wrong does not apply here strictly; for in this case the law has settled well and thoroughly what shall be considered sufficient proof. Jones v. Degge, Martin v. Foster, Sylvius v. Kosek, supra.

Baldwin & Johnston, for Appellee.

The jury are the sole and exclusive judges of the evidence, the weight of evidence and the credibility of the witnesses, and, where the evidence is conflicting, their solution of the problem of truth or falsity, is, within that sphere, conclusive. Stampofsi v. Steffens, 79 Ill. 303.

The cases cited by the appellant express the doctrine that where the makers of a written contract agree that the writing itself shall express the contract between the makers, then the makers, being thus put upon guard, are bound by the terms of the writing, in the absence of fraud. Where it is mutually agreed and understood that the writing itself shall express the concurrent minds and wishes of the contractors, the attention of the signers of the written contract is directed specially to and fixed upon the contents of the writing, and they look to and read the written contract for the purpose of seeing that it correctly expresses their intentions. The rule is radically different in all those cases where the minds of the contractors meet and agree through the agency of spoken language, and thereupon one of the parties purports to reduce the verbal contract to writing, but fraudulently misrepresents in writing the verbal agreement. In the latter instance one of the contractors may, without negligence, repose confidence in the honesty of the other who writes the contract. Briggs v. Missouri, 51 Mo. 249, 11 Am. Rep. 245, and note; Albany City Savings Institution v. Burdick, 87 N.Y. 44; Cole Brothers v. Williams, 12 Neb. 440; Griffiths v. Kellogg, 39 Wis. 290, 20 Am. Rep. 48; Whittaker v. Miller, 83 Ill. 383; Barlow v. Scott, 24 N.Y. 42; Puffer v. Smith, 57 Ill. 527; Trambley v. Record, 130 Mass. 259; Taylor v. Atchison, 54 Ill. 199, 5 Am. Rep. 118; Watt v. Powers, 20 Mich. 429, 7 Am. Rep. 661, and note; Gibbs v. Linbury, 22 Mich. 488, 7 Am. Rep. 675.

Kibbey, J. Gooding, C. J., and Wells, J., concur.

OPINION

The facts are stated in the opinion.

KIBBEY, J.--

This was a suit in the court below upon an alleged contract of purchase by the appellee from the appellant of a complete set of the literary works of Hubert Howe Bancroft, then in the course of publication by appellant. The price alleged to have been agreed upon, and which was sued for in this suit, was $ 170.50. There was judgment for the appellee in the court below.

It is objected to our consideration of this appeal that this court has not jurisdiction, because the judgment appealed from is not one from which an appeal is allowed, in that the "matter in dispute" does not exceed two hundred dollars. The several statutory provisions bearing upon the question of appeals to this court are as follows: Section 1869 of the Revised Statutes of the United States, (of our organic act) is: "Writs of error, bills of exceptions and appeals shall be allowed from the final decisions of the district courts to the supreme court of all the territories respectively, under such regulations as may be prescribed by law." Section 592, Revised Statutes of Arizona, 1887, is: "The supreme court shall have appellate jurisdiction in all cases where the matter in dispute exceeds one hundred dollars, where the legality of any tax, toll, or impost, or municipal fine is in question, and in all criminal cases amounting to felony, or on questions of law alone." Section 593 provides that "the supreme court shall have jurisdiction to review upon appeal, or other proceedings provided by law, (1) a judgment in an action or proceeding commenced in the district courts, when the matter in dispute exceeds two hundred dollars, or when the possession of tenements or land is in controversy, or brought into that court from another court, and to review upon appeal from such judgment, any intermediate order involving the merits, and necessarily affecting the judgment; (2) an order granting or refusing a new trial, sustaining or overruling a demurrer, or affecting a substantial right in an action or proceeding." The foregoing sections (592 and 593) are parts of title 14, approved March 10, 1887. Section 846, Revised Statutes of Arizona, 1887, is: "An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases." Section 846 is a part of title 15, but was approved February 14, 1887. A comparison of these several statutory provisions discloses an irreconcilable conflict. Section 1869 of our organic act, we think, refers only to "district courts" which are mentioned in and created by that act itself, and not to courts established under the provisions of section 1874 of the organic act, as are our several district courts in, of, and for the several counties. The "district courts" created by the organic act are those vested with the same jurisdiction in certain cases as is vested in the circuit and district courts of the United States, (see sec. 1910, organic act,) and which under the provisions of section 1865 of the Revised Statutes of the United States, and of the act of Congress of 1891, (sec. 5, ch. 131, Supp. Rev. Stats. U.S. p. 893,) hold two terms annually at such places within such district as may be designated by the chief justice and his associates. This appeal is from the district court of the third judicial district in and for the county of Yavapai. No such court is created by our organic act. It has its existence by the act of the legislative assembly of the...