Phelps v. Jones

• Decision Date: 24 January 1910
• Citation: 141 Mo. App. 223,124 S.W. 1067
• Parties: PHELPS v. JONES.
• Court: Missouri Court of Appeals

124 S.W. 1067

141 Mo. App. 223

PHELPS v. JONES.

Kansas City Court of Appeals. Missouri.

January 24, 1910.

Rehearing Denied February 7, 1910.

1. SALES (§ 36) — SUIT FOR PRICE — FAILURE TO READ CONTRACT — BASIS FOR DEFENSES.

In a suit against a buyer for the price, defenses predicated on his failure to read the written contract, which he claimed did not express the real agreement, were properly rejected where it appeared he was an intelligent person, able to read and write, and experienced in business, and his only excuse for not reading it was that he was in a hurry.

2. APPEAL AND ERROR (§ 1010) — REVIEW — FINDING OF COURT IN LAW CASE.

In a law case, a finding of fact by the trial court supported by substantial evidence will not be disturbed on appeal.

3. SALES (§ 38) — RESCISSION BY BUYER — FRAUDULENT REPRESENTATIONS.

For a buyer to be entitled to rescind for fraudulent representations he must prove misrepresentations of material facts were made to him with intent to deceive; that he believed them true and relied on them as an act of ordinary

prudence; and that they influenced his action.

4. SALES (§ 38*) — RESCISSION BY BUYER — FRAUDULENT REPRESENTATIONS.

That a gas machine would produce refuse to be removed in some way was a material fact, misrepresentation as to which is a ground for rescission by a buyer.

5. SALES (§ 41) — CAVEAT EMPTOR — APPLICATION OF RULE.

The rule of caveat emptor does not obtain where the parties do not stand on an equal footing, as where a machine sold is a scientific device the seller knows all about, and the buyer does not, and is compelled to rely for his information on the seller, in which case, the seller must apprise him of all material facts of purely scientific cognizance, and the concealment of material facts is of itself a misrepresentation.

6. SALES (§ 38) — FRAUDULENT REPRESENTATIONS — FAILURE TO DISCLOSE MATERIAL FACTS.

The seller must disclose all material facts of which he knows the buyer is ignorant, and there may be fraud in concealing material facts and circumstances as well as in direct misrepresentation if the buyer is knowingly suffered to act under a delusion.

Appeal from Circuit Court, Livingston County; Francis H. Trimble, Judge.

Action by A. S. Phelps, Jr., doing business as the New England Manufacturing Company, against R. W. Jones, begun in justice court. From a judgment for defendant in the circuit court, on appeal from a justice's court, plaintiff appeals. Affirmed.

Kitt & Taylor, for appellant. F. Sheetz & Son, for respondent.

JOHNSON, J.

This suit was brought before a justice of the peace to recover the purchase price of a gas machine sold and delivered by plaintiff to defendant. The defense is a rescission of the contract of sale, which was in writing, on the ground of fraud. A jury was waived in the circuit court, and the trial there resulted in a judgment for defendant. Plaintiff appealed.

Defendant admits he signed the contract on which the action is founded, but says he did not read it, and contends that it does not express the real agreement made by the parties. The court properly rejected the defenses predicated on defendant's failure to acquaint himself with the contents of the instrument. He is an intelligent farmer who can read and write and who is experienced in the transaction of business. The only reason he gave for not reading the contract before signing it is that he was in a hurry. This is no excuse in law. Breeders Co. v. Wright, 134 Mo. App. 717, 115 S. W. 470. We eliminate from the case, as did the trial court, all of the defenses, except the contention that defendant was induced to enter into the contract by false and fraudulent representations of plaintiff respecting the merits of the subject of the transaction.

Facts and circumstances in evidence pertinent to this defense thus may be stated: An agent of plaintiff called on defendant at his residence and solicited him to install therein a machine to manufacture acetylene gas for illuminating purposes. Gas is produced in such machines by the chemical action of water on carbide. Fifty pounds of carbide are placed in a tank with 50 gallons of water, and this quantity of material is supposed to generate gas during a period of 3 months or more. The agent had a model of the machine which he operated in a darkened room with entire success. The model had no drain from the tank and the deception which it is claimed the agent practiced consisted of the impression he purposely made on the mind of defendant that a drain was not necessary, because the union of water and carbide in the proportions stated would result in the final consumption of both. He did not make a direct statement to this effect, but in addition to exhibiting...