King v. Edward Thompson Co.
| Decision Date | 20 February 1914 |
| Docket Number | 8,249 |
| Citation | 104 N.E. 106,56 Ind.App. 274 |
| Parties | KING ET AL. v. EDWARD THOMPSON COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied May 15, 1914.
From Huntington Circuit Court; Samuel E. Cook, Judge.
Action by the Edward Thompson Company against Emmett O. King and another. From a judgment for plaintiff, the defendants appeal.
Affirmed.
Lesh & Lesh and C. W. Watkins, for appellants.
John Q Cline, William A. Branyan and Claude Cline, for appellee.
Appellee recovered judgment against appellants for $ 140 alleged to be due for law books. From this judgment appellants have appealed and assigned as error that the complaint does not state facts sufficient to constitute a cause of action; that the court erred in directing a verdict for the appellee, and in overruling appellants' motion for a new trial.
The gist of the complaint is that on March 13, 1906, appellants Emmett O. King and Francis I. Stults, law partners, by written order marked exhibit A and made a part of the complaint, purchased from appellee the American and English Encyclopedia of Law, consisting of thirty-two volumes and four supplemental volumes; that in pursuance of said order, appellee sent the books to appellants, who accepted them, have them in their possession and agreed to pay therefor $ 7.50 per volume, an itemized account of which marked exhibit B, is made a part of the complaint; that appellee has fully complied with its contract and there is due and unpaid on said order a balance of $ 140. Exhibit A made a part of the complaint is as follows:
The appellants filed answer in three paragraphs, the first of which is a verified general denial. In the second paragraph of answer, appellants admit that they gave an order for said books in 1906; that they received the books ordered and have not paid the full amount of the purchase price, but they further allege that a part of the consideration for the execution of said order was the verbal representation and guarantee of the agent of appellee who took the order that the second edition purchased by them was the last edition of said work that would ever be issued and that the same would be kept up by supplemental volumes; that they relied on said representations and guarantee and believed them to be true and were thereby induced to give said order and would not have done so had it not been for said representations, which were false; that appellee thereafter discontinued said supplemental volumes and issued a third edition of said work; that the consideration which induced appellants to execute said order failed; that by reason of the fact that said edition had been superseded by a third edition, the books purchased by appellants are practically of no value; that they have paid on said contract $ 130 which is in excess of the value of the books. Prayer for judgment against appellee for costs.
The third paragraph by way of counterclaim avers the same facts as the second paragraph of the answer and sets out a written order marked exhibit 1, which is the same as appellee's exhibit A except the portion italicized is omitted and the order appears to be signed by both partners individually and by the firm name. It also averred that appellants requested said agent to write into said order the agreement that said work would be kept up by supplemental volumes and that no other edition would be issued; that thereupon said agent struck out of said order the words "No representations or guarantees have been made by the salesman on behalf of the Edward Thompson Company which are not herein expressed" and "thereupon suggested that this would obviate the necessity of putting said guarantee in said written order"; that said instruments purported to be true duplicates of the order; that appellants read the copy exhibit 1 before signing the same and after they had signed the order, said agent handed them the additional copy, which he represented was a duplicate of the one already signed; that they believed the same was a true duplicate of the one already signed and so believing, signed said second copy without reading it, that the provision stricken out of said order first signed as aforesaid was not stricken out of alleged duplicate because of mutual mistake and inadvertence of the agent of appellee and of these appellants; that said instrument sued on was intended to be a true copy of the one read and first signed as aforesaid. Prayer for reformation of the contract "So as to conform to the agreement of said parties as intended and as expressed in the copy of the order so left with the defendants" and for judgment in damages for breach of the contract in the sum of $ 100.
Appellants contend that the complaint is insufficient because it does not aver or show that appellee accepted the order in writing; that to make a written contract, there must have been an acceptance in writing of the order given for the books. The proposition must have been accepted to become a binding contract, but such acceptance was not necessarily in writing. The complaint shows that appellee shipped the books in pursuance of the order; that appellants accepted them and retained possession thereof. The complaint is questioned for the first time after verdict, and will be held sufficient if it does not wholly omit some material averment, and is sufficient to bar another suit for the same cause of action. It states a cause of action.
The motion for a new trial presents the one controlling question in this case which is the correctness of the action of the trial court in directing a verdict for the appellee. It was proven that appellant, King, was the law partner of his coappellant Stults, and that he signed the firm name to both copies of the order. By his own testimony he admitted this to be true and that he signed the individual names of the firm to the copy known as exhibit 1. The amount is not disputed provided appellants are bound by the written order, but this is questioned on the theory that the agent of appellee, by verbal statements made before the order was signed, represented that no new editions of the work would be issued and that it would be kept up by supplemental volumes. Exhibit A is marked "original" and exhibit 1 is marked "duplicate". Appellants claim the difference in the wording of the two copies of the order is due to a mutual mistake; that the instrument should be reformed by making the copy relied on by appellee correspond to the copy set out as exhibit 1; that after the instrument is so reformed they should be permitted to prove by parol testimony the verbal representations of the agent relating to new editions and supplemental volumes, made prior to the signing of the order. It will be observed that either copy of the instrument is an unambiguous order for the books, conditioned only on appellee's approval thereof. The only effect of reforming the order as requested would be to make the copies exactly alike by striking out of exhibit A the words to the effect that no representations or guarantees of the agent had been made except those stated in the written order. The important question therefore relates to the proposition of new editions and supplemental volumes.
Three questions are suggested and discussed by counsel, relating to the court's action in directing a verdict for appellee, viz., (1) Is there any evidence tending to show that the agent who took the order had any authority to bind appellee by representations or guarantees in regard to new editions and supplemental volumes? (2) Is there any evidence tending to show a mutual mistake of the parties? (3) Are appellants bound by the printed order, or may they prove by parol testimony the alleged representations and guarantees of said agent?
The averments of the cross-complaint show clearly that appellants proceeded on the theory that exhibit 1 is the form of order agreed upon by them and said agent; that the copies signed by them purported to be true duplicates and the failure to strike said words from the copy last signed was due to the mutual mistake and inadvertence of said agent and appellants that they believed exhibit A to be such duplicate and for that reason signed the same without reading it. Neither the averments nor the proof indicate any written acceptance or approval of the order, but it is shown that the contract was consummated by shipment of the books to appellants by appellee and by their acceptance of them. There was therefore an executed...
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