Pratt v. Metzger

• Decision Date: 10 March 1906
• Citation: 95 S.W. 451,78 Ark. 177
• Parties: PRATT v. METZGER
• Court: Arkansas Supreme Court

95 S.W. 451

78 Ark. 177

PRATT v. METZGER

Supreme Court of Arkansas

March 10, 1906

Appeal from Conway Circuit Court; William L. Moose, Judge; reversed.

Reversed and remand.

W. P Strait, for appellant.

1. Where a warranty is upon condition, or when some duty is devolved upon the purchaser by the terms of the warranty such condition must be fulfilled upon his part before he can interpose the breach as a defense. 28 Am. & Eng. Enc. Law 830; 75 Ark. 206; 76 Ark. 74; 71 Iowa 101; 36 Kan. 439; 18 S.W. 789; 3 Wash. 603. The vendee must show that the conditions have been complied with. 14 Pa.St. 211; 21 Barb. 236; 1 Iowa 531; 11 N.E. 206; 12 N.E. 495; 55 N.W. 580; 11 Neb. 116. Where the vendee refuses to comply with his part of the contract, he puts it out of his power to rescind. 88 Iowa 607.

2. If a party signs a contract without reading it, or relying upon the representations of a stranger, he is nevertheless bound by it, and can not testify to an understanding of it contrary to its written terms. 71 Ark. 185; 46 Ind. 116; 43 Iowa 561; 106 Ind. 406; 14 Ind. 499; 50 Cal. 558; 67 Iowa 547; 59 Iowa 416; 71 Ill. 456. See also 12 Neb. 438; N. Y. 640; 11 Utah 29; 130 U.S. 643.

3. The court erred in refusing instruction 3 asked for by appellant. A contract having several distinct items, and founded upon a consideration apportioned to each, is severable, 76 Ark. 74; Beach, Contracts, § 731; 40 Cal. 251; 66 Pa.St. 351.

4. The court erred in giving its instructions "A," "C" and "D." 30 Am. & Eng. Enc. Law (2 Ed.), 203, 204 and notes; 35 Mo. 229; 55 Am. St. Rep. 837; 79 Mo. 264; 116 Wis. 130; 68 Iowa 94. See also 15 Am. & Eng. Enc. Law, 1227; Benj. on Sales (6 Ed.), § 667; 2 East, 314; 72 Ala. 288; 67 Minn. 329.

Sellers & Sellers, for appellee.

OPINION

BATTLE, J.

This case is very much like Pratt v. Meyer, 75 Ark. 206, 87 S.W. 123. Walter Pratt & Company brought an action against M. A. Metzger, before a justice of the peace of Conway County, for $ 198.88, upon a written contract by which the plaintiffs agreed to sell and deliver to the defendant a bill of perfumes, soaps and toilet articles. In the justice's court the defendant recovered judgment, and the plaintiffs appealed to the circuit court, where the defendant was again successful, and plaintiffs appealed to this court.

The same order for the goods was given in this case as was given in Pratt v. Meyer, supra, and the same warranty was made and on the same conditions. The same evidence, substantially, was adduced by the plaintiffs in the two cases.

Appellee testified over the objections of appellants as follows: "And in the contract I never noticed about notes at all until that night I sat down and read it, and I noticed it said 'notes.' * * * I wrote that I didn't notice that the contract called for notes, and that I didn't make any notes at all," and that the goods purchased were not suitable for his trade.

The court refused to instruct the jury, at the request of appellants, as follows:

"1. The failure to comply with reasonable conditions imposed by the contract of sale is fatal to the vendee's remedy for a breach of the warranty, whether he attempts to exercise it by action on the warranty or by setting up a breach of the warranty in defense of an action for the price by the seller. The law is well settled that where an express warranty is upon condition, or where duty is devolved upon the purchaser by the terms of warranty, such condition must be fulfilled or such duty performed before an advantage can be taken of a breach of such warranty.

"2. A party is bound to know the contents of a writing signed by him; and if he signs it without reading it, or relying upon the representations of a stranger, he is nevertheless bound by the contract, and can not testify as to his understanding of the contract, different from the plain, written terms of the contract.

"3. A contract, having several distinct items and founded upon a consideration apportioned to each, is severable. If you find that a part of the articles covered by the contract is in grade, kind and quality as therein provided, and they have a value or price apportioned to them, separate from the price of other goods not up to contract price and grade, then you will find for the plaintiff for the price of goods which are equal in grade to that provided by the contract."

And instructed them, over the objections of the appellants, as follows:

"A. If you find from the testimony that the goods were inferior in quality to the samples by which they were sold, and that the defendant, on receipt of the goods, notified the plaintiff, or the plaintiff's attorney, that he declined to accept the goods because of the fact that they were not equal to the samples by which they were sold, and if the defendant has not yet accepted the goods, your verdict should be for the defendant.

"C. If the original contract was induced by fraudulent representations made by the representative of the plaintiff, then, when Mr. Metzger discovered that he had been imposed upon, if the fact was true, he would have a right to repudiate the whole contract. I doubt if he would be required to give anybody notice. If that is true, the original contract was fraudulent. If he notified the attorney of plaintiff that he declined to accept the goods, in my opinion the notice was sufficient, although the contract may have required a written notice to be sent to the Chicago office. Then, if you find the contract binding, on the other hand, the notice would not be sufficient.

"D. If the proof shows the plaintiffs were manufacturers of the goods sold to the defendant, that the use for which the defendant bought or contracted for the goods was known by the plaintiffs, or the agent making the sale, then the law would imply an agreement and warranty upon the part of the plaintiffs that the goods were suitable for the uses bought for, and the defendant would be under no obligation to accept them; provided, also, that it appears that the goods were inferior to the samples by which they were sold."

The first instruction asked for by the appellants was based upon the contract sued on, and should have been given. Appellee agreed, as a part of the contract, "to examine and inspect the goods at once upon their arrival at...