White v. Elwell
| Decision Date | 03 May 1915 |
| Citation | 176 S.W. 486,189 Mo.App. 36 |
| Parties | E. C. WHITE, assignee of INTERNATIONAL HARVESTER COMPANY OF AMERICA, Appellant, v. J. R. ELWELL, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--H. B. Shain, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
G. W Barnett and E. C. White for appellant.
E. W Couey for respondent.
This action originated in a justice court and is for the recovery of the purchase price of six cream separators which plaintiff alleges were sold and delivered to defendant by the International Harvester Company of America. Before the suit was begun the demand was sold and assigned to plaintiff for a valuable consideration. The trial in the circuit court where the cause was taken by appeal resulted in a verdict and judgment for defendant and plaintiff appealed.
The International Harvester Company sells some of its goods to retail dealers and some it consigns for sale on commission. The controversy in this case is over the fact of whether or not the six separators which defendant admits he received and which were destroyed by fire about ten days after their delivery, were sold to defendant by the Harvester Company or were consigned to him for sale on commission.
Defendant, who was doing business at Lamonte, was visited by an agent of the Harvester Company with whom he had had business dealings and the result of the interview, as stated by defendant, was that he agreed to take one of the cream separators for sale on commission. The agent then produced a blank form of contract but defendant being in a hurry to go to a ball game would not wait for the written insertions to be made by the agent nor take time to examine the printed matter to ascertain whether the form was that of a consignment contract or of a contract of sale. He signed his name to the contract and directed the agent to make the necessary written insertions. The printed matter provided plainly and explicitly for the purchase of the machines by defendant and the instrument could not have been converted into a consignment contract without radical alterations therein.
Though defendant states he was only to take one of the machines he received, without objection, the six delivered to him and retained them until their destruction. Plaintiff objected to the introduction of the oral evidence of defendant contradicting the written contract but the objection was overruled, doubtless upon the theory that such evidence was pertinent to the issue defendant sought to inject into the case that he was induced to sign the written contract under which the machines were delivered by the false and fraudulent representation of the agent of the Harvester Company that the contract signed in blank would provide for the delivery of one machine on consignment.
The agent, introduced as a witness by plaintiff, contradicted the testimony of defendant on every point the latter deems vital to his defense, and stated that defendant did not sign the contract until after the written insertions were made and that the contract truly expressed the final agreement made by the parties.
In the instructions, the court directed the jury to find for the defendant if they believed from the evidence that the agent "falsely and fraudulently represented to defendant that he was creating defendant an agent to sell the goods in question on commission and that defendant believing and relying upon said...
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