Price v. Shay

Decision Date07 January 1922
Docket Number23,407
PartiesM. F. PRICE et al., Partners, under the name of DONALD-RICHARD COMPANY, Appellants, v. JOHN SHAY, Appellee
CourtKansas Supreme Court

Decided January, 1922

Appeal from Crawford district court; ANDREW J. CURRAN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

ORDER FOR MERCHANDISE--No Fraud Shown in Procuring the Order. The evidence of defendant considered and held insufficient to sustain a finding that he was induced by the fraudulent conduct of the plaintiffs to sign, without reading, a contract for the purchase of merchandise.

Arthur Fuller, and W. J. True, both of Pittsburg, for the appellants.

W. H Ryan, of Girard, for the appellee.

OPINION

PORTER, J.:

John Shay was an "Arcadian" merchant. He was interested in a general merchandise store at the village of Greenbush, in Crawford county, which was managed by his son, and in another store which he operated himself at Arcadia, in Crawford county. The plaintiffs are partners and carry on their business under the name of Donald-Richard Company, with headquarters at Iowa City, Iowa. Their business is selling to country merchants small stocks of cheap perfumery under a contract by which they agree to furnish the purchaser the use of an attractive show case in which to display the goods.

A traveling salesman of plaintiffs persuaded John Shay to sign an order and contract for a shipment of perfumery for each of his stores and with the agreement that on receipt of the goods he would execute to the plaintiffs two sixty-day notes each for $ 148.80. When the orders signed by him were received by plaintiffs at their Iowa City office they notified him that the orders were accepted, that the goods had been shipped, and they enclosed in the letter the notes provided for in the contract and requested that he execute and return them. He refused to accept the shipment and wrote plaintiffs that he had bought no goods from them; that the contract did not require him to pay anything until he sold the goods. This lawsuit followed, in which John Shay prevailed. The plaintiffs appeal.

The answer alleged that the defendant was induced to sign the so-called contract by false and fraudulent representations made by the plaintiffs' agent, and that he was not to purchase the goods, but was to take and sell them for the plaintiffs, with the option to return them at the plaintiffs' expense. The answer contained the following statement:

"Defendant says his eyesight was so defective that he was unable to read the writing at the time, and that the agent of the company who prepared the writing, falsely represented that no more was to be included in it than was agreed upon, and said defendant was induced to sign said contract."

On the trial John Shay had the burden of proof, and he testified in substance: That the plaintiffs' agent wanted him to handle the goods on commission and agreed to furnish the show cases to put the goods in, and that he was to pay for them at the end of every three months when he sold the goods. He testified: "I did not read the contract; I relied on his word. . . . He said there wasn't any money to be paid in this matter until the goods were sold. . . . The first time I realized the house thought I bought the goods straight out was when they sent me notes to sign, two or three days after." On cross-examination he testified that he had been in the mercantile business since 1902; that during that time he bought goods, gave orders for them, wrote letters concerning them, kept books of his business, remitted money for goods bought and sent orders for goods. He said: "I never saw this man [the agent] before that I know of. He was a stranger to me. I took his word for the contents of the writing. I can read and write and transact business of all kinds. I consider myself capable of transacting business. I took the word of a stranger rather than read the contract. There was but few people in the store, as it was about the noon hour. . . . I signed the contract there; I signed my name four times, two in regard to show cases and two contracts; they were to loan me the show cases." There was not a word in his testimony with reference to his eyesight being defective, or that he was unable to read the writing at the time, or that the salesman represented that there was no more to be included in the contract than was agreed upon. He testified: "I never had any other business transaction with this house nor with this man. . . . I am a little hard of hearing. I do not know whether he knew that or not. I did not misunderstand what he said: I heard what he said. I did not think of the matter until after I got the notes. It was about the noon hour that the man arrived at my store. He was there something like an hour."

In Deming v. Wallace, 73 Kan. 291, 85 P. 139, it was held that the rule that oral representations or inducements preceding or contemporaneous with the agreement are merged in the writing, is subject to the exception that if the representations amount to fraud which avoids the written contract they are not merged therein, and parol evidence is admissible to show the fraud. In that case the testimony showed that the agents of the plaintiff came to defendant when he was busily engaged with a number of men harvesting in his field, and informed him that in order to complete a loan which they had negotiated for him, it was necessary to execute new papers which they had prepared; that the notary they had brought with them was sick at defendant's house and ...

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    • United States
    • United States State Supreme Court of Idaho
    • January 2, 1925
    ...inform himself as to the nature, terms and conditions thereof. ( Constantine v. McDonald, 25 Idaho 342, 137 P. 531; Price v. Shay, 110 Kan. 351, 203 P. 1105; 6 R. L., p. 624, sec. 43; 13 C. J., p. 370, sec. 249.) The general rule of law that parol evidence cannot be admitted to alter, contr......
  • Southern Auto Co v. Fletcher
    • United States
    • United States Court of Appeals (Georgia)
    • September 22, 1941
    ...936; Velcich v. Malesh, 284 Ill.App. 63, 1 N.E.2d 278; Williams v. Hamilton, 104 Iowa 423, 73 N.W. 1029, 65 Am.St.Rep. 475; Price v. Shav, 110 Kan. 351, 203 P. 1105; Kentucky Road Oiling Co. v. Sharp, 257 Ky. 378, 78 S.W.2d 38; Spitze v. Baltimore & O. R. Co., 75 Md. 162, 23 A. 307, 32 Am.S......
  • Southern Auto Co. v. Fletcher
    • United States
    • United States Court of Appeals (Georgia)
    • September 22, 1941
    ...936; Velcich v. Malesh, 284 Ill.App. 63, 1 N.E.2d 278; Williams v. Hamilton, 104 Iowa 423, 73 N.W. 1029, 65 Am.St.Rep. 475; Price v. Shay, 110 Kan. 351, 203 P. 1105; Kentucky Road Oiling Co. v. Sharp, 257 Ky. 378, S.W.2d 38; Spitze v. Baltimore & O. R. Co., 75 Md. 162, 23 A. 307, 32 Am.St.R......
  • Stapleton v. Mendoza
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    • United States State Supreme Court of Kansas
    • May 9, 1953
    ...contend that was their fault and that it does not constitute a reason for setting aside the contract, citing Donald-Richard Co. v. Shay, 110 Kan. 351, 203 P. 1105, and Colt Co. v. Kocher, 123 Kan. 286, 255 P. 48. In 12 Am.Jur. 637, it is said: 'The rule that a person who fails to have a con......
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