The National Cereal Company v. Alexander

• Decision Date: 06 April 1907
• Docket Number: 14,984
• Parties: THE NATIONAL CEREAL COMPANY, Ltd., v. M. ALEXANDER
• Court: Kansas Supreme Court

89 P. 923

75 Kan. 537

THE NATIONAL CEREAL COMPANY, Ltd., v. M. ALEXANDER

No. 14,984

Supreme Court of Kansas

April 6, 1907

Decided January, 1907.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Fraud--Pleading and Proof--Variance. Under the facts of this case it is held that a discrepancy between a pleading and the proof offered to sustain it did not amount to a material variance, and that the adverse party was not misled to his prejudice.

2. EVIDENCE--Corroborative Testimony to Fortify an Impeached Witness. After the introduction against the plaintiff in an action of impeaching evidence tending to show that he had been silent concerning his claims when most likely he would have asserted them had grounds existed, and leading to the inference that they were of recent fabrication, he may be corroborated by proof of previous consistent claims and statements made and consistent conduct exhibited at a time when their ultimate effect could not in the nature of things have been foreseen.

George E. Stoker, for plaintiff in error.

Quinton & Quinton, and Arthur J. Bollinger, for defendant in error.

OPINION

BURCH J.:

Two principal questions are presented by the petition in error in this case, one relating to a variance between the pleading and the proof, and the other relating to the admissibility of testimony.

The plaintiff entered into negotiations with the defendant for an agency to sell a cereal food manufactured by the defendant. The transaction involved the purchase of one thousand dollars worth of stock in the defendant company. The plaintiff, a resident of Topeka, went to the headquarters of the defendant at Battle Creek, Mich., to investigate the proposals made to him. There a contract was drawn up, but being still in doubt the plaintiff took it home with him for further consideration before signing. Afterward he indicated a willingness to close with the defendant, who thereupon sent an agent to Topeka for the purpose of completing the proposed arrangement. The plaintiff and the defendant's representative, a Mr. Boyle, met, a contract was signed, the price of the stock was paid, a certificate of stock was delivered, and other steps were taken to install the agency. The plaintiff claims the contract agreed upon gave him the territory of the state of Kansas and Jackson county, Missouri. Upon making an attempt to conduct the business of the agency he discovered that he was limited to the state of Kansas only. He promptly rescinded, returned the stock, demanded a return of his money, and, upon the defendant's refusal to pay, brought suit. The petition contains the following allegations:

"Plaintiff brought said contract with him to the city of Topeka, and thereafter formally accepted the terms proposed and agreed to sign the same, and afterward, to wit, on the 2d day of March, 1903, the said defendant came to the city of Topeka for the purpose of having said contract signed, and took the contract which had been delivered the plaintiff for the purpose of making a duplicate of the same, and that, upon the same day, the said defendant exhibited to this plaintiff the contract, which they had made, and pretended to sign the same, and the plaintiff at the time, believing that it was the same contract, a duplicate having been taken by the defendant, signed the same, and paid one thousand dollars, as provided by the terms of said contract.

"And afterward the plaintiff discovered that in the signing of said contracts by him and the company that the said defendant had wilfully and fraudulently substituted an entirely different contract from the one agreed upon, written out and accepted by the parties; and that by reason of such wilful and fraudulent substitution this plaintiff at the time, without any knowledge of the wrongful act on the part of the defendant and believing that the contracts were the ones which had been agreed upon, signed the contract as presented, which limited his territory to the state of Kansas only. That said substituted contract was not the one by him agreed upon, and was not the consideration of the payment by him to said defendant of one thousand dollars, which he paid to the defendant."

On the trial the plaintiff's evidence tended to show that Boyle brought with him to Topeka a draft of a contract which had been executed on behalf of the company. This draft Boyle dated in plaintiff's presence, and delivered to plaintiff as his copy. Plaintiff signed the draft he had brought home from Battle Creek and delivered it to Boyle. Each draft consisted of two unattached sheets of paper, the first containing the description of the territory covered and the second containing the signatures. When the plaintiff signed the draft which he had brought home from Battle Creek its original form remained unchanged. He testified that the substitution in that copy was made after the paper left his hands. But he further testified that the supposed duplicate which Boyle brought to Topeka and delivered to him when he signed the other did not cover Jackson county, Missouri, as he discovered when he examined it after trouble arose.

The dating of one copy of the contract, the signing of the other, the exchanging of the duplicates, the payment of the money and the delivery of the stock certificate constituted in effect a single transaction, consuming about fifteen minutes of time, and occurred in a room at a hotel.

The plaintiff admitted to be incorrect the statement in his petition that Boyle, after coming to Topeka, took the draft of the contract which plaintiff had brought from Michigan for the purpose of making a duplicate, and admitted to be incorrect the statement that Boyle signed, on that day, a copy of the contract which he exhibited, pretending it to be genuine.

It is said the plaintiff undertook to set forth in his...