J.B. Colt Co. v. Kimball

• Decision Date: 30 September 1925
• Docket Number: 92.
• Parties: J. B. COLT CO. v. KIMBALL.
• Court: North Carolina Supreme Court

129 S.E. 406

190 N.C. 169

J. B. COLT CO. v. KIMBALL.

No. 92.

Supreme Court of North Carolina

September 30, 1925

Appeal from Superior Court, Vance County; Devin, Judge.

Action by the J. B. Colt Company against J. E. Kimball. From a judgment for defendant, plaintiff appeals. New trial.

Burden of proof on seller to show tender or delivery of goods within reasonable time or waiver of same by buyer.

The verdict is as follows: "Is the defendant indebted to the plaintiff; if so, in what amount? Answer: Nothing."

The plaintiff declared upon a written contract to purchase an Acetylene gas lighting plant for residential use, in the sum of $267.50. The defendant alleged that, on March 2, 1920 plaintiff's agent promised him that the lighting outfit would be delivered to defendant on his premises not later than 60 days from that date, and that the contract was based on this promise. The defendant further alleged:

That "the contract * * * was not read to this defendant, but was, through fraud and misrepresentation by the agent of the plaintiff, executed by this defendant."

The defendant admitted that he agreed to pay the plaintiff $267.50 only upon the strict compliance of the contract as agreed by plaintiff, and denies that the articles purchased have been delivered to him, and he said they never reached Townsville, N.C. The defendant further says:

That he, "through fraud and misrepresentation of the plaintiff, signed the contract attached to said complaint herein, and that this defendant never read the contract and does not believe he was given the opportunity to do so."

The defendant excepts for that the court below admitted evidence on behalf of the defendant, as follows: That the defendant was allowed to state that, as an inducement for him to sign the agreement of sale, plaintiff's agent told him they were going to put the lighting plant up in 30 days, and it would not be more than 60 days before his house would be lighted, and allowing the defendant to state that the contract read at the trial does not embody the agreement which he had with the plaintiff's agent, and to state that the defendant was not to give any note. The defendant contended that this evidence was incompetent on account of the provisions in the contract which are as follows:

"It being understood that this instrument, upon such acceptance, covers all of the agreements between the purchaser and the company, and that no agent or representative of the company has made any statements or agreements verbal or written modifying or adding to the terms and conditions herein set forth. It is further understood that upon the acceptance of this order the contract so made cannot be altered or modified by any agent of the company or in any manner except by agreement in writing between the purchaser and the company acting by one of its officers."

This case was tried below upon the assumption that there was no dispute about the acceptance of the contract by plaintiff.

The defendant further excepted for that the court submitted to the jury defendant's contention that he signed the paper which he was fraudulently induced to believe as something else than now appeared, and to the charge that, if the defendant has satisfied the jury that the signature to the contract was procured by fraud, then he would not be responsible for it or compelled to accept it, and to the charge that the defendant would be bound by the contract; it was his duty to read it or have it read for him, "unless the other party did something to mislead him to prevent him from finding out what was in the paper he was signing." And in submitting defendant's contention that plaintiff's agent agreed to have the plant there in 60 days and to be installed, and also submitting the defendant's contention that he was fraudulently induced to sign the contract.

From a judgment on the verdict in favor of the defendant, plaintiff appealed.

Perry & Kittrell, of Henderson, for appellant.

Kittrell & Kittrell and J. P. & J. H. Zollicoffer, all of Henderson, for appellee.

VARSER J.

Upon the defendant's pleading, it is apparent that fraud has not been sufficiently pleaded. It is accepted in this jurisdiction that the facts relied upon to constitute fraud, as well as the fraudulent intent, must be clearly alleged. American Exchange National Bank v. Seagroves, 166 N.C. 608, 82 S.E. 947; Beaman v. Ward, 132 N.C. 68, 71, 43 S.E. 545; Anderson v. Rainey, 100 N.C. 321, 334, 5 S.E. 182; McLane v. Manning, 60 N.C. 608; Case Threshing Machine Co. v. Feezer, 152 N.C. 516, 67 S.E. 1004; Merrimon v. Paving Co., 142 N.C. 540, 55 S.E. 366, 8 L. R. A. (N. S.) 574. Fraud must be charged positively, and not by implication. Foy v. Stephens, 168 N.C. 438, 84 S.E. 758. The presumption is always in favor of the pleader (Dixon v. Green, 178 N.C. 205, 100 S.E. 262), and when the necessary ingredients of fraud are plainly set out, the word "fraud" need not be used. Galloway v. Goolsby, 176 N.C. 635, 97 S.E. 617. Fraud must be charged so that all its necessary elements appear affirmatively. Nash v. Hospital Co., 180 N.C. 59, 104 S.E. 33; Marshall v. Dicks, 175 N.C. 38, 94 S.E. 514; Merrimon v. Paving Co., supra; Lanier v. Lumber Co., 177 N.C. 200, 205, 98 S.E. 593.

It is not sufficient to allege as a conclusion merely that the signature to the contract was procured by fraud and misrepresentation of plaintiff's agent. The facts must appear so that the court itself can see that these facts, if found to be true, do constitute fraud.

The defendant's evidence appearing in the record is not sufficient to constitute fraud if the proper allegations had been made. The evidence does not establish fraud in the procurement of the execution of the contract sued on, when viewed in the light most favorable to the defendant. He testifies, in his own behalf, on this phase of the case:

"I refused to take it (the Acetylene Gas outfit) for awhile, and finally he said if I would take this plant he would install it in 30 days, certainly not more than 60 days. That is my name at the botton of the contract. I cannot read the fine print in the contract. Agent did not tell me what was in it; told me it was a bill of sale--agreement of sale--I was signing; said the installer would be there in 30 days. Do not think I asked agent to read agreement of sale to me. Agent did not tell me what it was I was signing. I did not ask him, just signed my name. I was to pay cash when it was installed; did not ask any time. As an inducement for me to sign the agreement of sale he told me they were going to put the lighting plant up in 30 days, and it would not be more than 60 days before my house would be lighted."

The last sentence was objected to by plaintiff, but admitted. The defendant further testified:

"The agent led me to understand that the delivery in 30 days was in the contract. Could not say just what he said was in the contract, and I signed it thinking in 30 days I would have the plant. Did not know it was such a contract as it was or what conditions were in it. Agent did not do anything particular to keep me from reading the contract. Contract as read here today does not embody the agreement I had with the agent."

This last sentence was admitted over objection. The defendant testified:

"I think I wrote my name to the contract. Am on the board of education of Vance county; have been for 12 or 15 years. I farm on rather a large scale, and my business experience has been wider than the average farmer. I am in the habit of the transaction of business. Contract was signed at my home. I could have gone off and gotten some one to read the contract to me. It would have taken stronger glasses than I have to read that fine print. If I had had any idea it was a contract like that I would have been dead sure to have had it read. I did not make any effort to have it read; only thought it was a sale agreement. The agent did not make any attempt to keep me from reading it. I suppose I have been educated above the average citizen of Vance county."

This evidence does not establish fraud. De Loache v. De Loache, 189 N.C. 394, 400, 127 S.E. 419; Beaman v. Ward, supra; Printing Co. v. McAden, 131 N.C. 178, 42 S.E. 575; Irvin v. Jenkins, 186 N.C. 752, 120 S.E. 341. It is the defendant's duty to read the contract, or have it read to him, and his failure to do so, in the absence of fraud, is negligence for which the law affords no redress. The defendant's duty to read or have read to him the contract is a positive duty of which he is not relieved except in cases of fraud. School Committee v. Kesler, 67 N.C. 443; Dixon v. Trust Co., 115 N.C. 274, 20 S.E. 464; Griffin v. Lumber Co., 140 N.C. 514, 53 S.E. 307, 6 L. R. A. (N. S.) 463; Dellinger v. Gillespie, 118 N.C. 737, 24 S.E. 538; Bank v. Redwine, 171 N.C. 564, 88 S.E. 878; Taylor v. Edmunds, 176 N.C. 327, 97 S.E. 42; Newbern v. Newbern, 178 N.C. 4, 100 S.E. 77; Currie v. Malloy, 185 N.C. 215, 116 S.E. 564; De Loache v. De Loache, supra; Harvester Co. v. Carter, 173 N.C. 229, 91 S.E. 840. Therefore it was error to admit the evidence over plaintiff's objection. Farquhar Co. v. Hardware Co., 174 N.C. 369, 93 S.E. 922; Moffitt v. Maness, 102 N.C. 457, 9 S.E. 399; Murray Co. v. Broadway, 176 N.C. 151, 96 S.E. 990. This principle lies at the very foundation of all contracts. Its violation, if permitted by the courts, would strike down one of the safeguards of commercial dealing. The resultant injury would be far-reaching. The integrity of contracts demands its universal enforcement. Potato Co. v. Jenette, 172 N.C. 3, 89 S.E. 791.

Defendant's testimony shows that he is a man of education and prominence accustomed to the transaction of business, and of much experience, with more than an average education, who has...