Lumbar v. Erickson

• Decision Date: 05 May 1928
• Docket Number: 27,866
• Citation: 266 P. 737,126 Kan. 31
• Parties: I. A. LUMBAR, Appellee, v. L. C. ERICKSON, Appellant
• Court: Kansas Supreme Court

266 P. 737

126 Kan. 31

I. A. LUMBAR, Appellee, v. L. C. ERICKSON, Appellant

No. 27,866

Supreme Court of Kansas

May 5, 1928

Decided January, 1928

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Duty to Read. It is the duty of one who signs a written contract to know the contents thereof.

2. SAME--Validity--Effect of Failure to Read. One who signs a written contract will be bound by its terms, in the absence of any false representations to him as to its contents, or of his inability or lack of opportunity to read it.

Z. C Millikin, of Salina, for the appellant.

David Ritchie, of Salina, for the appellee.

OPINION

HARVEY, J.:

This is an action, so far as is involved on this appeal, on two promissory notes given for the purchase price of a tractor and plow, and to foreclose a mortgage to secure the notes on the property sold. The defense was a parol warranty, which was alleged to have failed, and fraud which induced the execution of the notes and mortgage and the written order for the purchase of the machinery. The jury answered special questions, and returned a general verdict for defendant. Plaintiff's motion for judgment on the answers to the special questions, notwithstanding the general verdict, was sustained, and defendant has appealed.

The tractor sold was a secondhand, or used, tractor. The written contract by which it was purchased contained these provisions:

"Any machine or part thereof which is secondhand, rebuilt or repaired, is not warranted, by statute or otherwise. . . . There are no representations, warranties, or conditions, express or implied, statutory or otherwise, except those herein contained and no agreement collateral hereto shall be binding upon either party unless in writing hereupon and attached hereto, signed by purchaser and accepted by vendor at his office."

There could be no parol warranties under this contract, unless the facts justified its being set aside on account of fraud. Such fraud was alleged, but the only fraud found by the jury was that plaintiff did not call defendant's attention to the clause, "any machine . . . which is secondhand . . . is not warranted." This was not enough to justify setting aside the contract on account of plaintiff's fraud. It was defendant's business to know what was in the contract when he signed it. Were the rule otherwise written...