T. & H. Smith & Co. v. Thesmann
| Decision Date | 03 February 1908 |
| Citation | 93 P. 977,20 Okla. 133,1908 OK 11 |
| Parties | T. & H. SMITH & CO. v. THESMANN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In the absence of misrepresentation, fraud, or deceit, a party to a transaction is bound by the writing evidencing the agreement though he was in fact ignorant of its contents; but, where the signature to the agreement is induced by the misrepresentations of the other party as to its contents, and the signer was ignorant thereof, he may introduce parol evidence of contemporaneous acts, declarations, and conversations to show the true nature of the agreement.
[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 2007-2020.]
An indorsement, reading as follows: "For value received and for the purpose of inducing S. & Co. to approve of this contract, I hereby guarantee to said S. & Co. the payment in lawful money of all claims arising and of any notes taken under within contract and hereby waive demand, notice of non-payment and protest and consent that S. & Co. may vary in any way the time of payment or method of settling accounts arising under within contract without affecting my liability as guarantor,"-where made and executed by F. T. upon an order for merchandise from D. H. to S. & Co., which order contained a condition that it should not be a complete and binding contract until approved by S. & Co., and where said order was not approved by S. & Co. until six days after the execution of said indorsement, held, in legal effect, to be an offer of guaranty, and not an absolute guaranty.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Guaranty, § 8.]
An offer or proposal of guaranty does not become a binding obligation upon the guarantor until such offer or proposal has been accepted by the guarantee, and notice of his acceptance given the guarantor.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Guaranty, §§ 8, 9.]
Error from District Court, Garfield County; James K. Beauchamp, Judge.
Action by T. & H. Smith & Co. against Frank Thesmann. Judgment for defendant, and plaintiff brings error. Affirmed.
J. M. Dodson and Guy S. Manatt, for plaintiff in error.
On July 29, 1899, D. H. Tessman, who then resided at Henderson, Neb., made, executed, and delivered to plaintiff, T. & H. Smith & Co., a corporation, with its place of business at Pekin, Ill., a certain written order and contract for goods, which order was delivered to R. C. Stephens, the agent of the plaintiff, and which order is as follows:
No. of Jobs Size Depth of Box Tire Style Brake Price
20 3 1/4 26 R B
8 $45.50
25 Slip tops 112 F. O. B. Pekin. 1.50
6 boxes.
On the back of this contract are nine conditions referred to in the contract. The fifth of these conditions is as follows: "This order does not become a complete and binding contract until it has been approved at the office of T. & H. Smith & Co., in Pekin, Ill., and no allowance or credits of any nature will be made in settlement, except by T. & H. Smith & Co. and its office in Pekin, Ill." Indorsed on this contract is the following agreement signed by Frank Thesmann, a brother of D. H. Tessman: "Guaranty. For value received and for the purpose of inducing T. & H. Smith & Co. to approve of this contract, I hereby guarantee to said T. & H.
Smith & Co. the payment in lawful money of all claims arising and of any notes taken under within contract and hereby waive demand, notice of non-payment and protest and consent that T. & H. Smith & Co. may vary in any way the time of payment or method of settling accounts arising under within contract without affecting my liability as guarantor." Under the above order plaintiff shipped to the defendant, D. H. Tessman, goods, wares, and merchandise, and for a part of the same D. H. Tessman on August 20, 1900, executed to the plaintiff in error three promissory notes, each for the sum of $325, payable at different dates, and bearing interest at the rate of 10 per cent. per annum, leaving the sum of $10.50 due on open account by said defendant in error, for which amounts plaintiff in error brought this suit against D. H. Tessman on the contract, notes, and open account and against the defendant in error, Frank Thesmann, on said alleged guaranty. The facts set out above are substantially as alleged in the plaintiff's petition. Defendant, Frank Thesmann, filed his separate answer to the plaintiff's petition, and denied all of the allegations contained in said petition, and further answered that on the 29th day of July, 1899, plaintiff, through its agent, R. C. Stephens, requested him to sign the written statement, the contents of which the said R. C. Stephens represented and stated were that D. H. Tessman was a business man, worthy of credit, and the defendant in error further plead in his answer that R. C. Stephens made other false and fraudulent representations to him to induce him to sign said statement; that he, the defendant in error, is a German, unacquainted with the English language, and cannot understand or comprehend an ordinary conversation unless it is in the German language, and that of this the said R. C. Stephens had knowledge at the time; and that by said divers false representations said R. C. Stephens obtained his signature to the alleged contract of guaranty set out in plaintiff's petition. Defendant pleads several other matters in defense of plaintiff's action; but it is not necessary to our consideration of this case to repeat them here. Plaintiff filed a general and special demurrer to the separate answer of the defendant, Frank Thesmann, and also a motion to strike out certain paragraphs of said answer, both of which were overruled by the court. Thereupon a jury was waived by both parties, and the cause was tried before the court. The court rendered judgment in favor of the defendant.
Plaintiff in error makes eight assignments of error. Of these only the third, fourth, and fifth assignments have sufficient merit to demand the consideration of this court.
The third assignment of error is that the court erred in admitting parol testimony to contradict and vary the terms of the alleged written guaranty. One of the defenses plead by defendant in his answer was that he was unable to read the English language, and that he signed the alleged guaranty on the representations of the plaintiff in error made by R. C Stephens, its agent, that said alleged guaranty was for the purpose of recommending to the plaintiff the character and reputation of D. H. Tessman, and was not for the purpose of creating any liability or obligation against him, and that he relied upon said false and fraudulent representations made by said R. C. Stephens, and was induced thereby to sign said alleged guaranty. It is a general rule of evidence that parol testimony is not admissible to contradict or vary the terms of a written contract, but parol testimony is always admissible for the purpose of invalidating a...
To continue reading
Request your trial