Sutton v. Weber
| Decision Date | 15 December 1904 |
| Parties | L. E. SUTTON, Appellee, v. H. WEBER & O. T. WEBER, Appellants |
| Court | Iowa Supreme Court |
Appeal from Kossuth District Court.--HON. W. B. QUARTON, Judge.
Reversed.
F. M Curtis and Watson & Weber, for appellants.
E. A Morling and E. V. Swetting, for appellee.
THE opinion states the case.--Reversed.
The plaintiff, as the assignee of her husband, J. L. Sutton brings this action at law to recover the price of certain goods alleged to have been sold by the latter to the defendants on terms stated in a written contract. The defendants are partners doing business as harness makers in Lee county, Iowa. J. L. Sutton lives in Kossuth county, Iowa and the nature of his business appears to be that of vendor of alleged remedies for the diseases and discomforts to which domestic animals are subject. The writing, which is worthy of study, is in the following words:
Duplicate Agent's Agreement.
Made and entered into this 10th day of July, A. D. 1902, by and between J. L. Sutton of Algona, Iowa party of the first part, and H. & O. T. Weber of West Point, County of Lee and State of Iowa party of the second part, witnesseth, That party of the first part for and in consideration of 85c. per can for Sutt's Hog Worm Exterminator, 30c. per package for Poultry and Condition Powders, 60c. per can for Lice Killer, 60c. per bottle for Barb Wire Liniment, 60c. per bottle for Sutt's Calf Dehorner Fluid, 60c. a bottle for Sutt's Lump Jaw Cure, 85c. per sack for Sutt's Young Calf Food Meal, $ 1.75 per sack or box for Sutt's Stock Food in sacks or boxes, 15c. a box for Gall Cure, 30c. a can for Harness Dressing, 60c. a box for Heave Cure, and 60c. a can for Hoof Ointment, to be paid in sixty (60) days to J. L. Sutton at Algona, Iowa. J. L. Sutton delivers party of the second part, f. o. b. Algona:
and also gives said second party the sale of Sutt's Stock Remedies in the town of West Point, County of Lee and State of Iowa. Not subject to countermand by second party. And said second party further agrees to keep or cause to be kept, at least ten cards of advertisements tacked up at the most public places, such as creameries, schoolhouses, livery barns and blacksmith shops all the year around, furnished by J. L. Sutton free to the local agent; and should the local agent fail to fulfill any of the above agreement, then J. L. Sutton or his authorized employe will be unconditionally empowered to cancel this contract by taking back the amount of medicine on hand and appoint another agent and to give the second agent the same rights and privileges.
[Signed]
J. L. Sutton.
H. & O. T. Weber.
The answer alleges, among other things: (1) That at the time the writing was executed the parties entered into a collateral oral agreement by which defendants were to become the agents of Sutton for the sale of goods of the kind described, and if they did not sell or were unable to sell the stuff delivered by Sutton, the latter would take the same back in full satisfaction and discharge of the written agreement; that, in reliance upon said oral agreement, defendants entered into the written contract; that defendants did not in fact make any sales of said property, and before this suit was begun, tendered and offered to return the same to plaintiff. (2) It is further alleged that the contract sued upon was made with the defendant H. Weber in the absence of his partner, O. T. Weber; and that H. Weber had no authority to make the purchase for the firm, and so informed the agent who represented Sutton in the transaction; and that H. Weber signed the firm name to the contract upon the express understanding and condition that said contract was not to go into effect or be of any binding force until approved by O. T. Weber. It is further alleged that, upon being notified of the signing of said agreement, O. T. Weber disapproved and refused to be bound thereby, and notice thereof was immediately given to Sutton, with a request that he would not ship the goods, but, in violation of the agreement upon which the contract was signed, and in disregard of the notice of O. T. Weber's disapproval, Sutton proceeded to ship the goods, and now refuses to accept a return thereof. On the issue presented by these answers, a trial was had to a jury. The plaintiff put in evidence the written contract, with testimony tending to show the shipment to defendants of the goods therein described, and rested. Thereupon the defendants offered testimony tending to sustain the allegations of the answer as above mentioned, but the same, with few exceptions, were excluded upon plaintiff's objection as being incompetent, immaterial, and irrelevant, and as being an attempt to vary or avoid a written contract by parol evidence of prior or contemporaneous negotiations between the parties. At the close of defendant's evidence, the court, upon plaintiff's motion, directed a verdict in her favor for the full amount claimed, and from the judgment entered thereon defendants appeal. The court appears to have held that the matters pleaded in the answer constitute no defense, and testimony sustaining the same was therefore inadmissible, and such is the position taken by counsel for appellee in this court.
I. Passing for the present the first plea, concerning an agreement by which the defendants, upon a failure to sell the goods might return them to Sutton in satisfaction of their obligation under the written contract, we have to say that, in our judgment, the second plea states a perfect defense, and the defendants should have been permitted to prove the same, if able so to do. It is to be noted that the written contract purports to be made with the defendants as a partnership. This partnership was engaged in the manufacture and sale of harnesses, and under familiar principles, neither partner had any authority, as such, to bind the other, without his express or implied consent, by contracts not within the scope of their partnership business. If a partner in the harness business may involve the firm in debt for "worm exterminators," "lice killers," and "lump jaw cures," so may he also for musical instruments, theater tickets, millinery goods, and any other property or thing for which the world of trade or speculation may seek purchasers. The answer alleges that this want of authority on part of H. Weber to bind the firm in such matters was understood and discussed between him and the seller's agent, and the contract was signed with the understanding that, if disapproved by O. T. Weber, it should be of no force and effect. Indeed, even in the absence of such agreement, and in the absence of any showing whatever that dealing in this line of goods was within the scope of the partnership business, the contract would have to be ratified by the absent partner before he would be bound thereby.
But we may go further, and say that, although dealing in this line of goods was clearly within the scope of the partnership business, yet, if, by agreement between the partners, O. T. Weber had sole authority to do the buying for the firm, and H. Weber was authorized to buy only with the consent or approval of his partner, and such agreement or limitation upon the power of the latter was made known to the seller's agent before the contract was signed, the contract would not be enforceable against the partnership unless ratified by O. T. Weber. If the contract was made under such circumstances, and O. T. Weber, upon learning of it, promptly refused to ratify it, and notified Sutton not to ship the goods, then such contract never became effective. Knox v. Buffington, 50 Iowa 320; 5 Wait's Action & Defenses, 126; Collyer, Partnership, section 387; Boardman v. Gore, 15 Mass. 331; Leavitt v. Peck, 3 Conn. 124 (8 Am. Dec. 157).
It is moreover, a well established doctrine that, where the rights of bona fide holders do not intervene, the rule which forbids oral testimony to vary the terms of a written contract does not operate to prevent a party thereto from showing that it was never delivered, or that the delivery was conditional. and the contract was to take effect only upon the happening of some future event. For instance, it has been held that a person may successfully defend against a claim upon a promissory note by showing that it was given for an insurance policy under a parol agreement that he should...
To continue reading
Request your trial