United Talking Mach. Co. v. Metcalf

• Decision Date: 20 February 1917
• Citation: 191 S.W. 881,174 Ky. 132
• Parties: UNITED TALKING MACH. CO. v. METCALF.
• Court: Kentucky Court of Appeals

191 S.W. 881

174 Ky. 132

UNITED TALKING MACH. CO. v. METCALF.

Court of Appeals of Kentucky.

February 20, 1917

Appeal from Circuit Court, Muhlenburg County.

Suit by the United Talking Machine Company against John H. Metcalf. There was judgment for defendant, and plaintiff moves for an appeal. Motion sustained, appeal granted, and judgment reversed, with directions to proceed in accordance with the opinion.

See also, 164 Ky. 258, 175 S.W. 357.

C. A Denny, of Greenville, for appellant.

Walker Wilkins, of Central City, for appellee.

THOMAS J.

The appellee (defendant) was a dry goods merchant at Central City, Ky. and on the 23d day of January, 1913 he executed the writing sued on, which, among other things is an order to appellant (plaintiff) for 13 symphony, hornless talking machines, together with records, needles, and other attachments necessary for their use. One of the machines was to be sent immediately by express from the Chicago office of the plaintiff, which was done, and the other 12 were to be shipped by freight from Bridgeport, Conn., the place of manufacture, for all of which the defendant agreed to pay a total sum of $281.96. In due time the remaining 12 machines arrived at Central City and were delivered to the defendant's store, but he declined to accept them and shipped them to plaintiff at Chicago, Ill. Plaintiff refused to accept them, and after fruitless efforts to collect or settle the account in some way it filed this suit in the Muhlenburg circuit court. Defendant's answer is a denial and a plea of fraud in procuring the contract. A trial resulted in a verdict and judgment in favor of defendant, from which an appeal was prosecuted to this court and the judgment was reversed on April 23, 1915, in the case of United Talking Machine Co. v. Metcalf, 164 Ky. 258, 175 S.W. 357. Upon a return of the case a second trial was held, resulting in another verdict for the defendant, and to reverse the judgment rendered therein the transcript has been filed in this court by plaintiff, accompanied with its motion for an appeal.

The facts are fully set forth in the first opinion, and we will make no reference to them, except in so far as is necessary to explain this opinion. The evidence upon the two trials was identical, except on the last one the defendant again testified before the jury. The circumstances under which he signed the contract, and which he claims constituted the fraud upon which he relies, as testified to by him on the first trial, are set out in the former opinion rendered in this case, from which we quote:

"Q. When you signed this paper purporting to be a contract, what were you doing? A. About that time three or four customers came in, and Mr. Gentry called me back and says, 'Here is one other little thing I want you to sign just to show that you are our representative.' Q. Did you know at that time that you were ordering 13 sets of records and machines? A. I didn't read it. Q. Why didn't you read it? A. I thought I was doing business with business people; I thought Mr. Gentry was an honest man. Q. What were you doing? A. I was busy, customers coming in. Q. How long had he been there then? A. About two hours. Q. How long after you signed this paper until he left? A. Just a few minutes. Q. Were you still busy when he left? A. Yes, sir. Q. Had you seen the paper before you signed it? A. No, sir. Q. When you signed this, did you sign it over carbon? A. Not that I know of. Q. Did he leave a carbon copy of this paper with you? A. No, sir."

At the last trial, upon this same point, he said:

"Q. What was it he [plaintiff's agent] said this paper was? A. He said that paper showed I was their local representative in this section. * * * Q. Well, you signed this paper? A. I signed the paper all right. Q. Did he read this paper to you? A. No. Q. How came you to sign that paper? A. I thought Mr. Gentry was an honest man, and relied upon what Mr. Gentry said that paper contained. Q. If you had known at the time that it did not contain what he said it did, would you have signed it? A. I would not. * * * Q. Why did you sign that paper? A. Well, I thought I was doing business with an honest man, and relied upon what Mr. Gentry said that paper contained, the reason I signed it. * * * By the Court: You may ask him that, why he didn't read it before he signed it? A. Well, I was busy, and thought I was doing business with an honest man, and I relied upon what Mr. Gentry said it contained."

The evidence upon both trials showed that plaintiff's agent and the defendant were talking over and discussing the proposition for at least two hours before the paper in question was signed, and that the agent remained at the store at least 30 minutes after it was signed, during which time selections of some of the records desired were being made. It is also claimed by the agent that he furnished to the defendant a carbon copy of the contract. This, however, is denied by the latter. In the former opinion the rule governing the rights of the parties under circumstances such as we have here is stated to be:

"It is a rule in this state that a party who can read and has an opportunity to read the contract which he signs must stand by the words of his contract, unless he is misled as to the nature of the writing which he signs or his signature is obtained by fraud."

The cases of Western Mfg. Co. v. Cotton & Long, 126 Ky. 749, 104 S.W. 758, 31 Ky. Law Rep. 1130, 12 L. R. A. (N. S.) 427, Blake v. Black Bear Coal Co., 145 Ky. 788, 141 S.W. 403, Case Mill Mfg. Co. v. Vickers, 147 Ky. 396, 144 S.W. 76, J. I. Case Threshing Machine Co. v. Mattingly, 142 Ky. 583, 134 S.W. 1131, and Chicago Building & Mfg. Co. v. Beaven, 149 Ky. 267, 148 S.W. 37, are referred to, and the court continues:

"To sustain the charge that a party's signature was obtained by misrepresentation, it must appear that the misrepresentation was material, that it was relied upon by the person whose action was intended to be influenced, and that it was made with knowledge of its falsity."

In determining that the evidence upon the first trial failed to show such misrepresentation or fraud as would relieve the defendant from liability, it is said:

"The contract did provide that defendant was to be the local agent. Nowhere does defendant say that he failed to read the contract because of the alleged statement of the agent. Nowhere does he say that he relied upon any representation of the agent as to the effect of the contract. His sole excuse is that he thought he was doing business with business people and that the agent was an honest man. In failing to show that he relied upon the alleged misrepresentation of the agent

...