Miller v. Howell
| Decision Date | 27 September 1922 |
| Docket Number | 99. |
| Citation | 113 S.E. 621,184 N.C. 119 |
| Parties | MILLER v. HOWELL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Northampton County; Calvert, Judge.
Action by G. L. Miller against W. H. Howell. From a judgment for defendant, plaintiff appeals. Affirmed.
The action is on a promissory note for $843.75, given by defendant to the Guarantee Food Company of New York, vendor dated December 3, 1917, payable 60 days after date. Plaintiff put in evidence the note indorsed to himself, and also a comtemporaneous written contract of purchase, containing the stipulation that defendant agreed to adhere strictly and be bound by the terms and conditions specified in the order, and release the Guarantee Food Company of New York from any verbal agreements or conditions of sale not mentioned on the face of the order, etc. Plaintiff further alleged, and offered evidence tending to show, that he was the indorsee and bona fide holder for value of said note, and same was due and unpaid.
Defendant denied that plaintiff was a purchaser for value and holder in due course of the note in question, and alleged, and offered evidence tending to show, that this note sued on was given to the Guarantee Food Company for stock or poultry conditioner a food, and at time of contract, and as an inducement thereto, said company, through its agent, represented to defendant, a local merchant, that same was a duly registered article under the laws of this state, a license to sell same having been duly obtained by the vendor company, and made other representations as to the value of his said goods which were false and fraudulent, and made with the design and purpose to cheat and mislead the defendant; that said attempted sale was made by said company, and to plaintiff's knowledge, in direct violation of the laws of the state, in that the article had not been registered, nor the tax paid, nor license procured, as required by the statute, and the said company and its agent were therefore without lawful authority to make any such sale; that defendant signed at the time of the bargain and before shipment, doing this at the request of the company's agent, who said he did not care to come back that way for the mere purpose of taking the notes; that before the receipt of goods defendant had become aware that the company's agent had made the false and fraudulent representations as stated and that the goods had never been registered under the law, nor had vendor company, nor any other, ever acquired any right to sell the same in this state, and thereupon defendant had refused the goods, and had never taken any of them from the railroad warehouse. It appeared, further, that plaintiff, G. L. Miller, was the manager of a company in Ohio, who had made and shipped the goods at the instance of and for vendor company under its pretended contract.
The cause was submitted to the jury, and verdict rendered on the following issues:
"(1) Is the plaintiff the owner of the notes sued on? Ans. Yes.
(2) Was the defendant induced by fraud to execute and deliver the notes sued on? Ans. Yes.
(3) If so, did plaintiff purchase same before maturity? Ans. No.
(4) If so, did plaintiff purchase same for value? Ans. No.
(5) Did plaintiff purchase said note without notice of any infirmity or defect? Ans. No."
Judgment on the verdict for defendant, and plaintiff excepted and appealed, assigning errors.
Stanley Winborne, of Murfreesboro, for appellant.
W. H. S. Burgwyn, of Woodland, D. C. Barnes, of Murfreesboro, and G. E. Midyette, of Jackson, for appellee.
There are various exceptions noted by the appellant, more especially as to the determination of the second issue, that as to the procurement of the contract by fraud; the objections being chiefly to the admission and consideration of evidence in contravention of the written stipulations of the contract that defendant "would adhere and be strictly bound by its terms, and releasing the vendor from any verbal agreements or conditions not mentioned on the face of the order." As pointed out in some of our decisions on the subject, restrictions of this character may be made effective, where they appear in a written agreement, which abides as the contract of the parties and is controlling in the controversy between them, but they are not allowed to prevail on an issue of fraud involving the validity of the contract itself, and the statements of the agent are offered as tending to show false and fraudulent representations inducing the contract and pertinent to such an issue. Machine Co. v. Bullock, 161 N.C. 1, 76 S.E. 634; Machine Co. v. Feezer, 152 N.C. 516, 67 S.E. 1004.
The matter is not further pursued, however, for in our opinion, and regardless of any finding on the second issue, no recovery can be had on this note, for the reason that same grows out of and is dependent on a transaction forbidden and made criminal by the public laws of the state. In Laws 1909, c. 556 (Cons. St. § 4742), it is provided that this foodstuff or conditioner, the subject-matter of the contract, shall not be sold or offered for sale in this state until the appellant shall file with commission of agriculture a statement of his purpose, and also for registration a duly verified certificate as to its qualities, and also file with said commissioner a labeled package of each brand, etc. In section 4743, a registration fee of $20 is required. Section 4744 provides that any person, corporation, or agent who shall offer for sale any of these articles without having complied with the statutory requirements appertaining thereto shall be guilty of a misdemeanor, etc. And section 4749 closes with the provision that this legislation is designed to protect the public from deception and fraud in the sale of these specified products.
It clearly appears in this record, and was practically admitted on the argument, that in regard to this stock and poultry conditioner, the subject-matter of this...
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