Rounsaville & Bro. v. Leonard Mfg. Co.
| Decision Date | 27 February 1907 |
| Citation | 56 S.E. 1030,127 Ga. 735 |
| Parties | ROUNSAVILLE & BRO. v. LEONARD MFG. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The trial judge, in passing upon the demurrer to the defendants' answer, did not err in construing it as setting up two separate and distinct defenses. Properly construed, the answer set up fraud in the procurement of the order which the defendants gave the plaintiff's agents for the goods, and notice by the defendants to the plaintiff before the goods were delivered to the common carrier for shipment, that they would not accept and pay for the same.
One who signs an instrument written by the opposite party at interest therein without reading it, when he is capable of doing so cannot afterwards set up fraud in the procurement of his signature thereto, when no trick or artifice was resorted to for the purpose of inducing him to thus sign it, and it was not signed under any emergency requiring haste in its execution.
There was no error in refusing to grant a nonsuit, as plaintiff's evidence made out a prima facie case in its favor.
When a contract for the sale of goods is still executory on both sides, notice by the purchaser to the seller that he will not accept and pay for the goods amounts to a breach of the contract. Thereafter the seller cannot deliver the goods to a common carrier, consigned to the buyer, and, having done so treat the contract as executed on his part, by suing the buyer for the purchase price of goods sold and delivered.
Error from City Court of Floyd County; Harper Hamilton, Judge.
Action by the Leonard Manufacturing Company against Rounsaville & Bro. Judgment for plaintiff, and both parties bring error. Reversed on main bill, and affirmed on cross-bill.
J Branham and McHenry & Maddox, for plaintiff.
Denny & Harris, for defendants.
1. The court did not, as alleged in the cross-bill of exceptions, err in construing the answer of the defendants as setting up two separate and distinct defenses, and in refusing, upon demurrer, to strike the answer in its entirety. Properly construed, the answer set up fraud in the procurement of the order, whereby the defendants were induced to sign a written order for 250 gross of the buttons, when they had really only agreed to purchase 12 gross of the same; and also notice to plaintiff, before the goods were shipped, that defendants would not accept and pay for them. While the plea did not in express terms allege that the order was countermanded, or that plaintiff was notified that defendants would not accept and pay for the buttons, it set forth a telegram and a letter sent by defendants to plaintiff, which, construed together, amounted to this, alleged that these communications were received by plaintiff before the goods were shipped, and then further alleged that the shipment of the buttons was promptly stopped. It is alleged in the cross-bill "that the court should have construed the allegations with regard to the countermanding of the order or delivery of the goods as incident to the general defense" of fraud in the procurement of the order. We do not think so. There was no special demurrer to these allegations, and the defense therein indicated was sufficiently set forth as against a general demurrer. It is true that, according to the plea, the order was countermanded because defendants discovered, from the invoice sent them by plaintiff, that it had been written for 250 gross of buttons, instead of for 12 gross, which was the amount they intended to purchase and thought they were purchasing when they signed the order; but if the order was really countermanded, or, to speak more accurately, if the defendants, before the goods were shipped, notified plaintiff that they would not accept and pay for them, it mattered not for what reason, good or bad, this was done. It might have been done upon the ground of fraud or mistake, or for any other reason whatever, as the motive which might have induced the action of the defendant in this respect is wholly immaterial.
2. The court did not err in striking so much of the defendants' plea as sought to set up fraud in the procurement of the order. The alleged fraud consisted in procuring the signature of the firm of Rounsaville & Bro. to an order for 250 gross of collar buttons, when the parol agreement between the parties was that the firm would purchase of plaintiff only 12 gross; but the fraud which, according to the plea, plaintiff's agent perpetrated upon the member of the defendant firm who signed the partnership name to the order, consisted merely in writing the order for 250 gross, when he should have written it for 12 gross, and then presenting the fraudulently prepared paper to J. W. Rounsaville, to be signed by the firm. He did nothing whatever to induce Rounsaville to sign the order without reading it, made no false representations to him as to its contents, but simply silently, rapidly, and somewhat illegibly wrote the order, with a pencil, and then as silently placed it "immediately and quickly" before Rounsaville, who "signed the same without reading it, believing it to be an order for 12 gross of buttons only." From the plea it looks like a case of blind faith in a rank stranger on the part of Rounsaville, or, at least, gross negligence in him in failing to read this brief order before signing it. The law, in such cases, does not relieve a party from the results of his own gross negligence. One about to sign a written instrument cannot rely blindly on the representations of the other party as to its contents; and if, without any emergency or fraud inducing him not to read it, he fails to do so, and signs it, he is bound by it. Walton Guano Co. v. Copelan, 112 Ga. 319, 37 S.E. 411, 52 L.R.A. 268, and cases cited. Most assuredly he will not be heard to set up fraud in the procurement of his signature to the instrument, when no representation whatever as to its contents was made to him by the other party, and no trick or artifice was resorted to to induce him to sign, without reading, but he did so in mere blind reliance upon both the integrity and accuracy of such other party.
3. There was no error in refusing to grant a nonsuit, as plaintiff's evidence made out a prima facie case in its favor. The plaintiff introduced the order for the goods signed by Rounsaville & Bro., the order showing that the goods were to be delivered at Cleveland, Ohio; also the invoice of the goods, which it had sent to defendants; and then read in evidence the following admission from the defendants' answer: This evidence, standing alone, showed that the goods had been ordered from the plaintiff by the defendants; that the plaintiff had accepted the order, by making out an invoice of the goods in accordance therewith and sending it to the defendants and thereafter delivering the goods to a common carrier for transportation to defendants; and, such delivery being equivalent to a delivery to defendants, the contract, from this evidence, appeared to have been fully executed by plaintiff. Of course, if the plaintiff had introduced the whole of the defendants' answer, this admission of the shipment of the goods by the plaintiff to the defendants would have been explained by its context and the connection in which it was made; but the plaintiff introduced only so much of the answer as suited its purpose, and consequently, when the motion for a nonsuit was made, it did not affirmatively appear that before the shipment of the goods the defendants had in effect notified the plaintiff that they would not receive and pay for them. The evidence as it stood when the motion...
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