Horne v. John A. Hertel Co.

• Decision Date: 07 December 1914
• Docket Number: No. 11309.,11309.
• Parties: HORNE v. JOHN A. HERTEL CO.
• Court: Missouri Court of Appeals

171 S.W. 598

HORNE v. JOHN A. HERTEL CO.

No. 11309.

Kansas City Court of Appeals. Missouri.

December 7, 1914.

1. CONTRACTS (§ 264) — FRAUD (§ 31) — RESCISSION — CONDITIONS PRECEDENT — NATURE OF ACTION.

A party induced to enter into a contract by fraud and deceit may rescind the contract and recover back what he has paid or sold, in which case he must tender back the benefits he has received; or he may affirm the contract and sue for damages, in which case his election to stand on the contract does not waive his right to recover damages for the fraud and deceit.

2. FRAUD (§ 18) — WHAT CONSTITUTES.

For the sales manager of a publishing house to represent to a prospective agent that the book which he should sell was the only extant publication of that nature, when in reality there were similar publications, is a misrepresentation

of an existing and material fact, for which the agent who entered the service of the publishing company may recover damages.

3. FRAUD (§ 25) — ACTIONS — DEFENSES.

Where the sales manager of a publishing house, in inducing an agent to enter into its service, misrepresented the facts, it is no defense to an action for fraud, brought by the agent, that he was impecunious; it being apparent that his services were a thing of value, and the fraudulent representation having been made to induce him to enter into the services of the publishing company.

4. EVIDENCE (§ 434) — PAROL EVIDENCE RULE — FRAUD.

The rule that all prior and contemporaneous oral representations are merged in the written contract does not apply to fraudulent representations made to induce a party to enter into the contract.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by R. C. Horne, Jr., against the John A. Hertel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Virgil V. Huff, of Marshall, for appellant. W. D. Bush, of Marshall, for respondent.

JOHNSON, J.

The petition alleges a cause of action in tort resulting from false and fraudulent representations which induced plaintiff to enter into a contract of employment with defendant and to attempt the performance of the same to his damage in the sum of $250. The sufficiency of the petition to state a cause of action was attacked by a demurrer, which the court overruled, whereupon defendant answered, interposing a general denial and the affirmative defense that "plaintiff has received from the defendant under and by the terms of said contract, the sum of $24.20, and still retains the same, * * * and by so receiving and retaining said benefits under said contract is estopped to deny the validity of the same." Verdict and judgment were for plaintiff in the sum of $50, and defendant appealed.

The material facts of the case are as follows: Defendant is the publisher of a child's book entitled "Bible Symbols, or the Bible in Pictures," in which simple narratives of biblical truths, events, and stories are interpreted and impressed upon the childish memory by a series of puzzle pictures, which illustrate and symbolize the narrative. The book is sold by subscription, and defendant maintains an office in Kansas City for its sale and distribution in states of the Middle West. Agents are usually procured by the sales manager of that office from among students attending colleges and universities who desire remunerative employment during vacations. Plaintiff, who was such a student attending school at Marshall, was solicited by the sales manager to enter into an agency contract for the sale of the book on commission, for a period beginning June 1, and ending September 5, 1912, and was induced to accept the offer by the representation, among others, that the method of instruction employed in the book was unique and not to be found in any other book on the market. Plaintiff alleged in his petition, and introduced evidence tending to show, that the representation was false, and its falsity known to the manager at the time, that there were numerous other similar publications on the market, that the territory assigned to ...