Wilson, Close & Co. v. Pritchett

• Decision Date: 08 June 1904
• Citation: 58 A. 360,99 Md. 583
• Parties: WILSON, CLOSE & CO. v. PRITCHETT.
• Court: Maryland Court of Appeals

58 A. 360

99 Md. 583

WILSON, CLOSE & CO. v. PRITCHETT.

Court of Appeals of Maryland

June 8, 1904

Appeal from Circuit Court, Dorchester County; Chas. F. Holland Judge.

Action by Wilson, Close & Co. against William G. Pritchett. From a judgment for defendant, plaintiffs appeal. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE, and SCHMUCKER, JJ.

Clement Sulivane, for appellants.

Goldsborough & Fletcher, for appellee.

SCHMUCKER J.

The appellants sued the appellee in the circuit court for Dorchester county in assumpsit on a written contract for the sale of certain patent medicines and flavoring extracts. The appellee, as defendant, filed the general issue pleas, and also a special plea asserting that the plaintiffs had procured the contract through fraud. The verdict and judgment having been for the defendant, the plaintiffs appealed. The record contains four exceptions to the court's rulings on evidence and one to its action on the prayers.

The plaintiffs are manufacturing druggists in Iowa City, Iowa and the defendant is engaged in the grocery business at Cambridge, Md., and is an illiterate person. The written contract in question is somewhat unusual in form. It consists of a sheet of paper headed "Advertising That Pays," on which appears a list, constituting an assortment, of goods, with their respective prices, amounting in the aggregate to $186, together with the details of a scheme by which the plaintiffs, as vendors, warrant the quality of the goods, undertake to do certain things to assist in their advertisement for the benefit of the vendee, and guaranty him a fixed profit on the sale of them. In the body of this scheme it is stated that the authority of the salesman is limited to taking orders on the regular forms of the vendors and that the latter will not be bound by his representations or agreements unless they are indorsed upon the order. On the back of this sheet appears an order for the goods, addressed to the vendors, as follows: "Gentlemen--Please ship the goods herein described f.o.b. Iowa City, Iowa, on terms and conditions herein stated, all of which we have carefully read and find complete and satisfactory. We understand that agreement to be binding must be noted hereon." To this is appended the signature of the defendant as the vendee, and also that of the salesman, as well as an acceptance signed by the vendors.

At the trial of the case below, the plaintiffs having offered evidence tending to prove the execution and delivery of the contract, and the shipment of the goods in accordance therewith, and the failure of the defendant to pay for them, the latter offered his own testimony as to his residence and occupation and his inability to read or to write beyond signing his own name. He further testified to the following facts: On March 17, 1903, Joseph Wonn, the plaintiffs' salesman, came to his store in Cambridge, and offered to sell him the goods described in the contract. No bargain was made at that visit, but Wonn returned to the store at about 8 o'clock in the evening of the same day, and urged the defendant to buy the goods, saying that he would leave town in the morning. He at the same time assured the defendant that none of the same kind of goods had been sold to any other person in Cambridge, although he expected to sell one assortment of them to a dry goods merchant. He also said that he was not permitted to sell more than two assortments of them in any one town or community, one to a grocer and the other to a dry goods man. The defendant also testified that when Wonn urged him to order an assortment of the goods he told Wonn of his inability to read or write beyond signing his name, whereupon the latter read, or pretended to read, the contract to him, but did not read the portion of it relating to the extent of his own authority; that the defendant, before signing the order for the goods, objected to what might be the cost of the freight on the goods from Iowa City, whereupon Wonn said that he guarantied that the freight would not be over $1.50 or $2; that the defendant, upon the faith of the various statements and representations so made to him by Wonn, signed the order proffered to him by the latter for the goods. When the goods arrived at Cambridge, the freight on them amounted to $8.69, which the defendant refused to pay, and the goods were not delivered to him. He at once caused his clerk to write for him to the plaintiffs, informing them of the situation, and refusing to take the goods unless they would act fairly with him. A day or two after that he discovered that Wonn had already sold similar assortments of the plaintiffs' goods to two other grocers in Cambridge at the time when he induced him to sign the order for his assortment.

To the admission of all of this testimony, and more of like tenor, given by the defendant, the plaintiffs objected by a single objection, but the court overruled the objection, and admitted the evidence, and the plaintiffs took their first exception. There was no error on the part of the learned judge below in overruling this objection for some portions of the testimony thus objected to in bulk were clearly admissible, and when such is the case it is not error to overrule the objection. Morrison v. Whiteside, 17 Md. 458, 79 Am.Dec. 661; Everett v. Neff, 28 Md. 184; Burgoon v. Bixler, 55 Md. 389, 39 Am.Rep. 417.

The second exception was taken to the court's refusal to grant a motion made by the plaintiffs to strike out this testimony o...