Robinson & Co. v. Roberts

• Decision Date: 14 April 1908
• Citation: Robinson & Co. v. Roberts, 20 Okla. 787, 95 P. 246, 1908 OK 68 (Okla. 1908)
• Parties: ROBINSON & CO. v. ROBERTS.
• Court: Oklahoma Supreme Court

95 P. 246

20 Okla. 787, 1908 OK 68

ROBINSON & CO. v. ROBERTS.

Supreme Court of Oklahoma

April 14, 1908

Syllabus by the Court.

In an action of replevin for property traded in on the purchase price of a threshing outfit, consolidated and tried with a suit for the balance due upon notes given for the remainder of said purchase price which had been foreclosed, leaving said balance due plaintiff, where the evidence showed a verbal agreement between plaintiff's agent and defendant that the notes and mortgage so given by him in payment therefor were to be held by the agent, and not turned in to plaintiff until defendant could take the outfit and try it for the first 10 days of the threshing season, and if it did not suit him could return it and get back his notes and mortgage so given, and in order to induce defendant to sign a contract therefor said agent represented to him that the contract contained said verbal agreement, and so read the same to defendant, who could not read the same because he did not have his spectacles, and who relied upon the statement of the agent that said order did contain said verbal agreement when in fact it did not, but the same was a contract for an absolute sale of the property with covenants of warranty, and the outfit was returned because it did not do as so verbally agreed, held, that the finding of the jury that the defendant was induced to sign the contract by the fraud of the agent was supported by the evidence, although the evidence further disclosed that a copy of the contract was furnished defendant when signed by him, and which he did not read until the "trouble with the machine came up."

Where defendant claims to be relieved on the ground of fraud, he must act with the utmost diligence and promptitude in discovering the fraud, and in claiming to be relieved by reason of it, and whether he has so acted, is a question of fact for the jury.

[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 313-317.]

Error from District Court, Garfield County; James K. Beauchamp Judge.

Action by Robinson & Co. against C. F. Roberts. Judgment for defendant, and plaintiff brings error. Affirmed.

On November 25, 1903, Robinson & Co., a corporation, plaintiff in error, plaintiff below, filed in the district court of Garfield county, Okl., its amended petition in replevin against C. F. Roberts, defendant in error, defendant below to recover possession of one sixteen horse power traction engine, Stephens make, of the value of $500, and one Reeves separator, with wind stacker, weigher, and drive belt, of the value of $200, by virtue of the terms of a written contract between plaintiff and defendant, dated June 13, 1903, a copy of which was attached thereto and marked "Exhibit A," wherein, as is alleged, defendant promised to, and did thereby, sell plaintiff the property therein described in part payment of certain other personal property therein described purchased of plaintiff by defendant, and wherein it was stipulated between them that defendant should deliver the property herein sought to be replevined before plaintiff should deliver to defendant said property bought by him of it, and which defendant refuses to surrender on demand. For answer defendant filed a general denial. On November 12, 1904, plaintiff filed an amended petition in an additional action, and stated in substance that on the _____ day of June, 1903, plaintiff and defendant entered into a contract, a copy of which was filed therewith and marked "Exhibit A," whereby plaintiff sold defendant one sixteen horse power right-hand traction engine, with full length cab and coal stack, one 321 1/2x52 Bonanza separator, with Robinson self-feeder, American weigher, and wind stacker attached, one Gandy drive belt 150 feet and eight inches, four ply, one canvas cover, one tank, pump, and hose, one adjustable screen to be put in extra, subject to the conditions of the warranty printed in said contract, and in payment whereof defendant agreed to pay plaintiff the sum of $15,500, evidenced by certain notes set forth in the complaint. It is further alleged that in addition defendant agreed to transfer to plaintiff as part of the purchase price of said property one sixteen horse power Stephens traction engine and Reeves separator, with wind stacker, weigher, and drive belt, and pay it the additional sum of $250, evidenced by certain promissory notes set forth in the complaint; that all of said notes were payable to plaintiff, and were secured by a chattel mortgage on the machinery bought of plaintiff by defendant, which said notes were to be turned over in payment to plaintiff before delivery of said purchased property; that pursuant thereto plaintiff delivered said property to defendant, but that he had failed and refused to deliver to plaintiff the property therein agreed by him to be delivered, and that plaintiff has done all that it contracted to do in the premises; that pursuant to said contract, and to secure said notes defendant, on June 18, 1903, made, executed, and delivered to plaintiff a chattel mortgage on the machinery so sold him by plaintiff, a copy of which is filed with its complaint and marked "Exhibit G"; that the debt evidenced by said notes becoming due and payable, plaintiff had foreclosed said mortgage according to the terms thereof, and had sold thereunder the property sold defendant, as aforesaid, for the sum of $1,325, and had credited the same upon said notes, leaving a balance due thereon of $544.45, for which it asked judgment.

For answer to this petition defendant says that on the _____ day of June, 1903, one J. M. Brandt, as agent for plaintiff represented that he had in his possession in the city of Enid a certain threshing outfit set forth in Exhibit A to plaintiff's petition; that the same was new, well made, and of good material, and with proper management would do as much and as good work as any other of the size and made for the same purpose; that he desired to sell the same, and that he would allow defendant to take it out and try it and determine whether or not it would perform the work as represented; that thereupon they agreed that defendant should take said threshing outfit at the beginning of the threshing season in 1903, use the same for a period of 10 days, and if it worked satisfactorily it was then to become the property of defendant, for which he would pay plaintiff $1,800, and also deliver to said agent one sixteen horse power Stephens traction engine and a Reeves separator, wind stacker, weigher, and drive belt, the property of defendant; that said indebtedness of $1,800 was to be evidenced by five promissory notes due thereafter at stated intervals; that pursuant to said verbal agreement he called on said agent for the threshing outfit for the purpose of taking and trying the same, which was delivered to defendant, at which time said Brandt represented to defendant that it was necessary for him to execute the notes above referred to and set forth in the petition, and leave the same with him to be returned to defendant in case the threshing outfit proved unsatisfactory, and if, on the other hand, said notes were then to be delivered to plaintiff and become its property, the sixteen horse power Stephens traction engine and the Reeves separator, with wind stacker, weigher, and drive belt, were, in that event, to be also delivered to plaintiff. At the same time said Brandt represented to defendant that it was necessary to sign some writing to the effect that said threshing outfit had been delivered to defendant in accordance with their said verbal agreement, and he prepared a paper partly in printing and partly in writing, which he said and represented to defendant contained their stipulation and verbal agreement above set forth; that he would retain said contract and agreement in his possession and under his control, and that it would only be delivered to plaintiff after the said defendant had tried said threshing outfit and accepted it, and that said writing would be delivered together with the notes to defendant if he decided not to accept the threshing outfit after giving it a fair trial; that, relying upon the statement of J. M. Brandt, the said agent, and believing that to be true, the said J. M. Brandt pretending to read the said agreement and contract, and believing that he read the same correctly, and relying upon him in that particular, being unable at the time to read said contract on account of his eyes, he signed said contract presented and read to him by the said J. M. Brandt, the said J. M. Brandt, as aforesaid, representing and stating to the effect that the said writing was in no way to affect or vary the terms of their said verbal agreement; that according to said verbal agreement defendant took said threshing outfit for the purpose of trying to see if it met the requirements and performed the work that it was represented to do; that said Brandt requested him that if it did not do so to at once notify him of any defect and he would send an expert or some one to remedy any defect that might be discovered in the outfit; that he took the same and gave it a fair trial, and that the same wholly failed to do the work as represented; that he notified said Brandt of the defects therein; that he and others acting under him took charge of the machinery and attempted to put it in working order, which they entirely failed to do in certain particulars specifically set forth in the complaint; that after repeated efforts so to do defendant notified said Brandt that he could not accept the said threshing outfit, and offered to return the same to him in the storehouse of plaintiff from which it was taken; that thereupon said Brandt and defendant verbally agreed that said Brandt take possession...