Price v. Shay
Decision Date | 07 January 1922 |
Docket Number | 23,407 |
Parties | M. F. PRICE et al., Partners, under the name of DONALD-RICHARD COMPANY, Appellants, v. JOHN SHAY, Appellee |
Court | Kansas Supreme Court |
Decided January, 1922
Appeal from Crawford district court; ANDREW J. CURRAN, judge.
Judgment reversed.
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.
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: 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: 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:
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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