Shores-Mueller Co. v. Lonning
| Decision Date | 12 March 1913 |
| Citation | 140 N.W. 197,159 Iowa 95 |
| Parties | SHORES-MUELLER CO., Appellant, v. C. T. LONNING, Defendant, NELS A. THOMPSON and KNUD LARSON, Appellees |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--HON. CHAS. E. ALBROOK, Judge.
THIS is an action upon a contract, purporting to have been executed by the appellee defendants, in which they guaranteed the performance of a contract made between plaintiff and defendant Lonning, by which he (Lonning) purchased from and agreed to sell for the plaintiffs certain medicines extracts, spices, stock foods, etc. Lonning, although made a party to the action, was not served with notice, and the case went to trial on issues joined between plaintiff and the guarantors, resulting in a verdict and judgment for the guarantor defendants, and plaintiff appeals.
Affirmed.
Hagemann & Farwell and Chantland & Hemingway, for appellant.
Healy & Healy and B. B. Burnquist, for appellees.
The making of the contract between plaintiff and defendant Lonning for the purchase and sale of certain medicines extracts, spices, stock foods, and other articles is admitted, and it is also admitted that defendant's signatures to what purports to be an absolute and unqualified guaranty of the faithful performance of the contract by Lonning are genuine; but they pleaded in substance, that their signatures were obtained by fraud and misrepresentation of the plaintiff's agent; that neither of them could read or write the English language; and that it was represented to them, by plaintiff's agent, and by Lonning, who was also present, that the paper was not intended as security or a guaranty, but simply a statement as to the reputation or character of Lonning, and was for no other purpose; that, relying upon these statements and being unable to read the same, they signed, not knowing that it contained anything other than was stated to them by plaintiff's agent. It appeared upon the trial that Lonning was indebted to plaintiff in something more that $ 1,000; that defendants had signed an agreement whereby they undertook to guarantee the payment of whatever amount Lonning should owe the plaintiffs. The contracts were entered into on the 2d day of October of the year 1908, and Lonning got his supplies and materials during that and the subsequent years, but quit work early in January of the year 1910, and his whereabouts have subsequently been unknown.
Under the issues and the facts above recited, the burden was clearly upon the defendants to prove the alleged fraud and misrepresentations pleaded by them. This they attempted to do, and upon the issues joined and the testimony adduced the trial court gave the following, among other instructions:
The burden is upon the defendants, and each of them, to establish by a preponderance of the evidence the defense set up by them. You will observe that this defense rests upon an alleged fraud perpetrated upon them, and each of them, in the procurement of their signatures to the guaranty sued upon. In this connection you are told that it is the law that one who signs a contract is bound to exercise reasonable care and prudence to inform himself as to its contents; and, to defeat a recovery on a written contract of guaranty on the ground that fraud was used in obtaining his signature thereto, it is not sufficient to show that he neglected to read it, and the agent of the other party misrepresented its contents. To make out such a defense, it must ordinarily appear that the party signing was prevented from reading it or induced not to read it by reason of some artifice or misrepresentation made use of for the purpose, and that such artifice or misrepresentation was of such character as would have misled and induced a person of ordinary prudence, placed under like circumstances, to withhold reading the contract of guaranty, and to rely on the representations made, and that he was deceived and misled by such artifice and misrepresentation. So, in this case, if the defendants present, and making defense before you, or either of them, could not read the English language, and was by any misrepresentation as to the contents of the contract and guaranty misled as to the true nature of their guaranty and of the contract itself, and such misrepresentations were of such character as would have misled and induced a person of ordinary prudence and intelligence placed under like circumstances to sign the same without having such agreement read, and to rely upon the representations so made, and that he was deceived and misled thereby, and that the making of such misrepresentations was taken part in, or made in part by or in the presence and hearing of the then present representative of the plaintiff company and that the said representative did hear the same, then and in such case, if you find these things have been proven and established by a preponderance of the evidence, by either or both of these defendants, the plaintiff cannot be allowed to recover as against the defendant so establishing these facts. But if you do not find that the defendants, or either one of them, has proven the above and foregoing facts and established the same by a preponderance of the evidence, your verdict must be against the defendant so failing, if either has so failed, to so prove such facts, for the full amount you find due on the account of the plaintiff from the defendant Lonning. You will understand that you are at liberty, and it is your duty, to find against either one or both of the defendants on this defense of theirs, or in favor of both, as the evidence before you when weighed in the light of these instructions justifies you...
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