Paris Mfg. & Importing Co. v. Carle

• Decision Date: 13 February 1906
• Citation: 92 S.W. 748,116 Mo. App. 581
• Parties: PARIS MFG. & IMPORTING CO. v. CARLE et al.
• Court: Missouri Court of Appeals

92 S.W. 748

116 Mo. App. 581

PARIS MFG. & IMPORTING CO. v. CARLE et al.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. SALES—ACTION FOR PRICE—INSTRUCTIONS.

In an action for the price of goods sold, defendant claimed that she had verbally ordered of plaintiff's agent a much smaller quantity of goods, although she had signed a contract which called for the amount of goods delivered, and the court instructed that if defendant signed the order, knowing that it called for the amount of goods delivered, the verdict must be for plaintiff; that before there could be a contract of sale, the minds of the parties must have met, and that if defendant was misled by the statement of the salesman as to the quantity of goods defendant was purchasing, defendant had a right to refuse to accept the goods. Held, that the instructions were erroneous as leaving out of view the question whether defendant was fraudulently imposed upon by the agent.

2. CONTRACTS—VALIDITY OF ASSENT.

A party cannot avoid the obligation of a written contract signed by him by denying that he knew its contents or that it expressed the real agreement, unless fraud or artifice was practiced upon him, or he was enfeebled by illness, or ignorant and unable to read the writing, etc.

3. SALES—VALIDITY.

Where a purchaser verbally ordered a certain amount of goods of a salesman, and he placed before her a written contract calling for a greater quantity of goods, and she signed it, she could not avoid the obligation of the written agreement.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

Action by the Paris Manufacturing & Importing Company against N. H. Carle and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

R. G. Ranney, for appellant. Robert L. Wilson, for respondents.

GOODE, J.

This action was brought before a justice of the peace. The statement filed alleged that on September 18, 1903, and prior thereto, plaintiffs were partners; that on that day, the defendants gave a written order to plaintiffs for goods, wares, and merchandise, amounting to $180.60; that on receipt of the order, plaintiffs delivered such goods, wares, and merchandise to the defendants in accordance with its terms and amounting to the sum mentioned; that defendants promised to pay plaintiffs said sum for the said goods, wares, and merchandise, but refused to pay, and plaintiffs seek judgment for the debt. The evidence goes to show that a day or two before September 18, 1903, E. B. Deane, a traveling salesman of plaintiffs, called at the millinery store of the defendants in Cape Girardeau and proposed to sell defendants a bill of goods. His conversation was with Mrs. Carle. On the next morning, he again went to the store carrying samples of perfumery which he exhibited, and afterwards took from Mrs. Carle, representing the firm of Carle & Mahn, a written order. This document is as follows:

                      "Paris Manufacturing & Importing Co
                     Manufacturing Chemists and Perfumers
                       "Corner Main and Walnut streets
                                St. Louis, Mo
                   "For redemption of advertising coupons we
                will furnish free
                1   Doz. Card Perfumes ................$ 1 20
                1    "   Card Perfumes ................  1 80
                ½ " Perfume for Handkerchief....  1 50
                [Here follows a list of various articles
                concluding with:]
                Total for advertising purposes ........$25 00
                

Following the above list is a list of eight articles, amounting to $7.50 in value, furnished free to apply on the freight charges of the goods.

Warranty.—We warrant that the goods shipped will be taken from the same general stock as salesman's samples. Should any article fail to give your customer entire satisfaction we will refund the price to him or furnish a new article free of cost provided not more than one-fourth the contents has been used.

Exchange.—Any goods in this assortment may be exchanged or returned for credit on a reorder at any time within eight months from date of invoice, or at any time thereafter provided the reorder be for twice the amount returned.

Return Cash Purchase.—Eighteen months from date of settlement if made as agreed herein, if the amount of retail sales is less than the wholesale price of this order the Paris Manufacturing & Importing Co. agrees to buy back sufficient goods to make up the difference. The conditions of this agreement are that the customer keep the goods well and tastily displayed, use advertising provided, and by the 10th of each month furnish us an itemized list of sales and goods on hand.

Terms of Settlement.—One-fourth of the amount due in three months, one-fourth in six months, one-fourth in nine months and one-fourth in twelve months without interest. A discount of 1% per month (12% per year), will be allowed for cash in 10 days. The above terms of credit will only be allowed in case account is closed by notes within 10 days from date of invoice; otherwise net cash 30 days. The vendor shall have a lien on all goods furnished until settlement is made."

                        Assortment.
                2 Doz. Card Perfumes.............$  75
                2 " Card Perfumes ............... 1 25
                3 " Perfume for Handkerchief..... 2 00
                

There are 34 other kinds of articles in the list, of various values and making a total of $180.60. These were the goods ordered by defendant. Afterwards, the statement follows that 100 bottles of two different sizes, with corks for same, were furnished free of charge.

Free with the above assortment one $24.00 Oak Show Case. This case is well made, is 4 feet long, 40 inches high and 24 inches deep, wood doors and shelves.

The Paris Manufacturing & Importing Co. will send out coupons to each of 100 persons, the names and addresses to be furnished by customer, said coupons to be redeemed with goods furnished for such purpose in the above order and the coupons to be good for a present of 10 cents worth of goods or a credit of 25 cents on a 50 cent purchase.

Neither party shall be bound except as herein expressly agreed, and time is the essence of these agreements.

                                           Sept. 18th, 1903.
                

Paris Manufacturing & Importing Co.—Gentlemen: On approval please ship the above mentioned goods via convenient transportation companies.

                  [Customer's Signature]   Carle & Mahn,
                                             Per Mrs. Mahn.
                  [P. O. Address] Cape Girardeau, Mo.
                  Freight Station, ______.
                  Salesman: E. B. Deane.
                  Exhibit A. James E. King, Notary Public.
                

Although the order is signed, "Carle & Mahn, per Mrs: Mahn," Mrs Carle swore she signed it. It seems that the goods ordered were to be packed in a show case, and the defense is that Deane represented to Mrs. Carle that the plaintiffs sold bills of goods amounting to $25, which were packed in a small show case, and other bills amounting to $180.60 which were packed in a large case; that Mrs. Carle verbally ordered a bill of merchandise amounting to $25 to be packed in a small case, and signed the order for the large bill under the impression that it was for the small one. She swore she did not read the contract over before signing it but that Deane read part of it to her and she misunderstood its terms or was misled by him regarding them. We copy portions of her testimony. "I cannot state just the date I saw Mr. Deane, first, but it was in the week that we ordered the goods, and he was in my place the third time before we made the order, and that was either on the 17th or 18th, I cannot tell just which, about closing time, 9 o'clock or possibly a little after. He told us the goods were a good line of goods, and that we could get either of two sizes of show cases full; there was a $25 size and another one he told us of at that time, and we said we had never handled perfumes or anything on that order, and that we would try a small sample case and were very much surprised when a large case came. Q. Why did you not read that order? A. Mr. Deane read me part of the order but kept it in his hands; I never had the order in my hands except to sign it. Q. Then when he read the order and he told you of the sizes of the cases, did you tell him what size you wanted? A. Yes, sir; and measured right on my counter just the place it would fit, and I told him I could not handle the larger case. Q. He measured on the counter just where it would fit? A. Yes, sir. Q. What did he say it would cost? A. $25 case that would be, and that is what I thought I was getting. Q. When the case came was it the size that he measured on your counter? A. No, sir. Q. What was the difference? A. Well, the case I got must have been five feet in length, it was quite a good deal larger. Q. How much larger? A. Well, the one I ordered was about 2 or 2½ feet, and this was 5 feet long. Q. And you say you could not use the five-foot case as you had no room for it, and he said he could send a smaller case? A. Yes, sir. Q. When it came what was the size of the one you received? A. I did not measure it, I should estimate it at five feet. Q. Mrs. Carle, I believe you said you never read the order that Mr. Deane presented to you? A. No, sir. Q. Is this the order he presented to you? (Witness is shown original order.) A. I suppose it is; that is my signature, but Mr. Deane called over the amount of goods out of this order that was to be put up in the $25 order. It was never...