Standard Manufacturing Company v. Hudson

• Decision Date: 19 June 1905
• Citation: 88 S.W. 137,113 Mo.App. 344
• Parties: STANDARD MANUFACTURING COMPANY, Appellant, v. HUDSON, Respondent
• Court: Missouri Court of Appeals

88 S.W. 137

113 Mo.App. 344

STANDARD MANUFACTURING COMPANY, Appellant, v. HUDSON, Respondent

Court of Appeals of Missouri, St. Louis

June 19, 1905

Appeal from Barry Circuit Court.--Hon. Henry C. Pepper, Judge.

AFFIRMED.

STATEMENT.

This action is on a contract for the price of goods sold and delivered. The defendant, a merchant at Cassville, purchased from plaintiff, an Illinois corporation, through its traveling salesman, a quantity of flavoring extracts perfumes and toilet articles, etc., for which he signed a written contract agreeing to pay therefor $ 173 in four equal installments, two, four, six and eight months after date. There were a number of provisions in said written contract whereby a showcase was to be furnished and defendant was required to keep the goods constantly on display. Certain profits were guaranteed to defendant, etc., and certain invitation cards were to be furnished him and be mailed out to his customers. Upon the customer returning said card to him, he would redeem the same by giving each holder thereof twenty-five cents worth of goods of plaintiff's manufacture free of charge. This was a means of advertising at plaintiff's expense. There were other provisions, all of which, with those last mentioned, are immaterial here however, and will not be further noticed.

The day the invoice came to hand, defendant wrote plaintiff that he had received the invoice but that it was not according to the contract and declined to accept the goods. Several letters of complaint passed from the defendant to plaintiff. Upon the payments coming due under the provisions of the contract this suit was instituted in the circuit court of Barry county for the price of said goods.

Defendant's answer admits that plaintiff shipped him the goods mentioned and avers the affirmative defense of non est factum as follows: "Defendant for answer to plaintiff's petition says that he did not sign or deliver to plaintiff the contract filed with plaintiff's petition nor any contract of which the same is a copy." This answer is verified by the oath of defendant.

The issue thus made up, a jury being waived, was tried by the judge. Plaintiff introduced the contract and admission contained in defendant's answer, admitting that the goods had been shipped by plaintiff to him. Thereupon the defendant was put upon the stand. He examined the contract and swore that it was signed by him. Thereupon the plaintiff rested.

To sustain the issues of non est factum on his part, defendant testified in substance that he was called upon by plaintiff's agent; that he and the agent had some conversation about the matter and the agent made the changes in the printed form as to six payments instead of four, as contended for by defendant, in his presence; that he saw the changes made therein and that they were made when he signed the contract and that the contract now appears without such changes in it. Witness Bayless also swore that he saw the agent writing on the contract just before defendant signed it. Defendant testified that the contract was read to him by the agent with its changes and a so-called duplicate, anyway a copy of the printed contract with the changes in it, as contended for by defendant, was delivered to him by the agent at the time. This so-called duplicate was introduced in evidence and compared in the trial court and was as testified to by defendant. The defendant testified positively that while he was unable to say how the contract had been changed he had not signed it as it now appeared.

"Q. You did not see whether your duplicate and this was just alike? A. They were just the same. . .

"Q. You couldn't say there had been any changes in this that you can discover from reading it? A. You can't get me to say that. I wouldn't say that for the world. It had them changes in it, it was there when I signed it.

"Q. Will you swear those words in this duplicate were in this when you signed it? A. Yes, sir, was there but was changed, it was an exact duplicate of the one I have got.

"Q. How do you know it if you didn't read it? A. It was changed there before my eyes.

"Q. Didn't you say you never read anything on it but relied on the reading of the agent? A. Yes, sir, I say that time I didn't read it, he changed it before I signed it. I wouldn't sign it before he changed it. . .

"A. Yes, sir, when he put that in there, he handed it right to me, and he had hold of it when I signed it. He was very careful. . . .

"A. I know he changed it.

"Q. You say you did not see any indications of any changes? A. A man can know some things, and I know he changed that contract before I signed it, then I put my name to it, and then he gave me a duplicate and then got out quick."

Nothing in evidence shows whether the contract was filled out in ink or pencil, except that it was signed in indelible pencil.

The original contract upon which suit was brought and which was introduced in evidence at the trial, failed to show any of the changes therein as testified to by defendant, that is, it appears to have been the original printed form as printed by the company without any of the interlineations which defendant insists were made therein before he affixed his signature thereto. If this is true, then the contract sued upon is not the same contract he signed. Both the original contract and the copy thereof furnished defendant by the agent at the time were before the trial court in evidence and subject to examination and comparison for alterations or erasures, if any had been made therein. A peremptory instruction to find for plaintiff was refused and five declarations of law given which will be hereafter noticed.

The trial court found the issues for the defendant. Plaintiff appeals to this court and insists that inasmuch as defendant admitted signing the contract and failed to point out any interlineations or erasures therein, he failed to sustain his defense of non est factum and therefore the finding of the court was error.

Judgment affirmed.

Peel & Sizer and Davis & Steele for appellant.

A party is bound to know the contents of a writing signed by him and if he signs the same without reading it or relying upon the representations of a stranger, he is nevertheless bound by the contract and cannot testify as to his understanding of the contract different from the plain language of the writing. He is bound by his agreement deliberately entered into. Guilliher v. Railroad, 69 Iowa 416; McCormick v. Moberly, 43 Iowa 561; Penny v. Martin, 4 Johns. Ch. 566; Story's Equity Jurisprudence, sec. 146; Butman v. Hussy, 30 Me. 263; Glen & Price v. Statler, 42 Iowa 107; McKinney v. Herrick, 66 Iowa 414; Bell v. Byerson, 11 Iowa 233; Rogers v. Place, 29 Ind. 377; 2 Parsons on Contracts, 722; Kerr on Fraud and Mistake, 77; Nebeker v. Cutsinger, 48 Ind. 436; McKegney v. Wideskind (Ky), 6 Bush. 107; Hotchkiss v. Carney, 12 N.W. 48 Mich. 276; Cash Register Co. v. Blumenthal, 48 N.W. 622, 85 Mich. 464. Beach on Modern Law of Contracts, sec. 818.

George & Landis for respondent.

Then it seems that the only point in this case is, was there competent and relevant evidence on which the court could find that the contract sued on was different from the one delivered by defendant to plaintiff. If so this court will defer to the finding of the trial court and will not disturb its verdict in an action at law. Swayze v. Bride, 34 Mo.App. 414; Smith v. Zimmerman, 51 Mo.App. 519; Todd v. Terry, 26 Mo.App. 598; Holt v Johnson, 50 Mo.App. 373; Blanton v. Dold, 109 Mo. 64, 18 S.W. 1149. Hudson's testimony is positive that the contract was different when presented to him at the trial from the one delivered to plaintiff at the time of execution. There was also before the trial court the contract sued on; so that the trial court was in a better position to pass upon the evidence than the appellate court could possibly be. This being true and the evidence being...