Pratt v. Darling

• Decision Date: 02 May 1905
• Citation: 125 Wis. 93,103 N.W. 229
• Parties: PRATT ET AL. v. DARLING.
• Court: Wisconsin Supreme Court

125 Wis. 93

103 N.W. 229

PRATT ET AL.

v.DARLING.

Supreme Court of Wisconsin.

May 2, 1905.

Appeal from Circuit Court, Waupaca County; Chas. M. Webb, Judge.

Action by Walter Irving Pratt and others against E. L. Darling. Judgment for defendant. Plaintiffs appeal. Affirmed.

This is an action to recover for merchandise sold. The plaintiffs are manufacturing chemists at Iowa City, Iowa, and the defendant is a merchant at Manawa, Wis. On March 31, 1903, the plaintiffs' traveling salesman, one Killen, called on the defendant at his store, at Manawa, and, after some negotiations, obtained the defendant's written order for a quantity of perfumes and toilet preparations, amounting in all to $133.38. This order contained, among other provisions, the following: “Separate verbal or written agreements with salesmen are not binding upon Walter Pratt & Co. All conditions of sale must be shown on this order. * * * We have no agreement or understanding with salesmen except as printed or written on this order.” The order contained provisions as to the display of the goods in a show case to be furnished by the plaintiffs, and required the defendant to keep the line of goods complete by purchases at least as often as every six months; also other provisions not necessary to be stated. The goods were shipped to defendant at Manawa, April 2, 1903, but on the 6th of April, 1903, the defendant countermanded the order, and refused to receive the goods, on the ground that the sale was effected by fraud. A verdict for the defendant was directed, and from judgment thereon the plaintiffs appeal.F. F. Wheeler, for appellants.

E. L. & E. E. Browne, for respondent.

WINSLOW, J. (after stating the facts).

The fraudulent representation upon which the defendant relied as vitiating the contract of sale was a statement made to him by the agent, Killen, during the negotiations, to the effect that he had not sold these goods to any other merchant in Manawa, and would not do so. The testimony is absolutely undisputed that this statement was made by Killen, and that defendant relied upon it, and would not have purchased had it not been made. It is very certain from the evidence that the sole handling of this line of goods in Manawa was considered important by both parties. It is also undisputed that this statement was untrue, and that Killen in fact had sold the same line of goods to Schuelke Bros., who are merchants in the same town. Upon learning this fact the defendant at...