TOLEDO COMPUTING SCALE COMPANY v. GARRISON

TOLEDO COMPUTING SCALE COMPANY v. GARRISON. Contkacts; Sales ; Fraud. 1. The practice of attempting to incorporate conditions in a contract by indorsement of the same on the back or margin thereof is one not to be encouraged; and there seems to be no greater reason for holding a party bound by such an indorsement on a contract of sale of personal property, unless observed and assented to by him, than in the case of a carrier’s contract for transportation. (Citing Boering v. Chesapeake Beach B. Co. 20 App. D. C. 500; 193 U. S. 442, 48 L. ed. 742, 24 Sup. Ot. Rep. 515.) 2. The mere fact that a contract presented for signature to one who is able to read and understand it fully, and who is not presented from reading it by some artifice of the other party, is represented to amount to nothing more than a simple receipt, is not sufficient to avoid it on the ground of fraud; it will not do for him to say he did not read it, or did not know its contents. (Following Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262, 178 U. 8. 15», 44 L. ed. 1015, 20 Sup. Ct. Rep. 880, and Whiting v. Davidge, 23 App. D. C. 156, and distinguishing Donaldson v. XJhlfelder, 21 App. D. C. 489, and Purity loe Co. v. Haw-ley Down Draft Furnace Co. 22 App. D. C. 573.) No. 1690. Submitted October 16, 1906. Decided November 7, 1906. HeariNG on an appeal by tbe plaintiff from a judgment on verdict of tbe Supreme Court of tbe District of Columbia, in an action of assumpsit. Reversed. The Couet in the opinion stated tbe facts as follows: This action was begun in a justice’s court by the Toledo Computing Scale Company to recover of Bushrod T. Garrison $60, being tbe purchase price of scales sold to him April 27, 1905, Judgment was rendered for tbe plaintiff, but on appeal to tbe supreme court of tbe District and trial de novo, judgment was entered in favor of defendant, from which this appeal has been prosecuted. It appears from tbe bill of exceptions that plaintiff’s agent contracted to sell tbe scales to tbe defendant at tbe price of $65, and there was offered in evidence a written order for the same executed by the defendant. The paper is a printed form with blanks, some of which were filled in writing by plaintiff’s agent. In the upper left-hand corner appear the words in plain print, “Notice: No scales placed on trial.” Then follow in very large type the words, “Order Form for Scales.” The date in writing is, “Washington, D. C., April 27, 1905.” It is addressed to the plaintiff, requesting it to ship to the defendant one No. 22 Scales, in consideration of which he promises to pay $65, being the price of the scales f. o. b. Toledo, Ohio. Terms: $10 on delivery; balance, $5.50 per month— Allow $5 for E. B. Scale. Certain printed conditions follow, which are unimportant in the litigation, save that upon failure to pay installments tbe entire price shall become due. It concludes with, the printed words : “This contract covers all agreements between the parties hereto.” Defendant admitted that no payments had been made on account of the order, and that the scales had been delivered and were then in his possession. Defendant then testified in his own behalf, in substance as follows: “That in April, 1905, he received a number of calls from one L D. Lasley, who represented himself to be the agent of the plaintiff, who importuned him to purchase a set of scales from the plaintiff. That Lasley called several times, and defendant declined to buy the scales. That on April 27, 1905, Lasley called upon him when he was very busy, and tried to sell him a set of scales. The defendant told Lasley he did not wish to purchase them; whereupon Lasley stated that he would leave the scales with the defendant for thirty days’ trial, and that if, at the expiration of that time, the scales were found to be satisfactory, the defendant could purchase them; if they were not satisfactory, he could remove them, — whereupon the defendant agreed to this proposition. Then Lasley drew a paper from his pocket; the same being the contract hereinbefore described,, which said paper was folded in the center, the crease being under words 'dollars’ (less 5 per cent being full cash settlement),, which paper Lasley requested the defendant to sign; and, upon defendant asking him what the paper was, he replied that it. was a receipt, showing the receipt of the scales. That he, the-defendant, did not examine the paper, except that he noticed there was some blank spaces, none of which were filled in; and that he did not see any part of the paper above the line where the same was creased. That he had no idea that he was signing a contract for the sale of the scales. That it was agreed that in the event that the defendant should purchase the scales he was to pay $65 for same, $10 first payment, and balance $5.50 a month, and was to receive a credit of $5 for return of old pair of scales. That at the expiration of the thirty days, the scales not being satisfactory, he notified Lasley to remove the same, wbieb was not done. That tbe scales are now in bis possession, subject to tbe order of tbe plaintiff.” Cross-examination: “Witness could read and write tbe English language, had been tbe proprietor of a grocery store in tbe city of Washington for several years prior to tbe signing of tbe paper; no fiduciary, or other relations of confidence or trust existed between Lasley or plaintiff and witness. Witness examined contract sufficiently to see that blanks below crease on paper were not filled in; that be did not think he was signing a different piece of paper, in tbe physical sense, than tbe one in question. That tbe scales are still in his possession, and bis reason for signing the paper at tbe time be did was because be was in a hurry, and it was represented by Lasley to be a receipt.” The plaintiff moved tbe court to instruct tbe jury to return a verdict in its favor, on tbe ground that tbe evidence of defendant made out no sufficient defense. This was overruled. Mr. H. Winship Wheatley, for tbe appellant: Tbe precise point involved here was decided in Mutual Ins. ■Go. v. Hodgkin, 66 Me. 109, where tbe defendant signed certain papers, relying upon tbe statement of an agent as to their contents and meaning. Breese v. United States Teleg. Go. 48 N. Y. 102, was a case where a man signed a stipulation printed on a telegraph blank without reading it, and was held bound by it. Tbe same ruling was made in tbe case of Rosen v. Dry Dock Go. 7 Mise. 130 (N. Y. Feb. 5, 1894), as to a conductor who signed certain regulations of the company as to money deposited by him as security, without reading them. Robinson v. James, 25 Mo. App. 421, is a strong case, tbe facts in which are more aggravated than in tbe case at bar. In that case tbe agent who made tbe representations embezzled tbe money. Tbe party making tbe contract bad opportunity to read it, but did not do so because be bad left bis glasses at home, and relied on the assur-anees of the agent as to its contents. See also Kilbourne v. King, 6 D. 0. 310, and Upton v. Tribilcoch, 91 U. S. 50. Mr. Charles F. Diggs, for the appellee: The single question involved in this case is whether or not parol evidence will be admitted not to contradict, alter, or in any manner change the terms of a written contract, but whether it may be shown in evidence that the signature of the defendant to the contract, which is relied upon by the plaintiff, was secured by the fraud of the plaintiff or his agent, either by the fraudulent concealment or withholding from the defendant the whole or part of the contract relied upon. Whatever might have been the old rule, it would seem that the modern decisions hold that, where no rights of innocent third parties are inv< Ved, a defendant may show that his signature to a contract was secured by the fraud of the plaintiff. 14 Am. & Eng. Enc. Law, pp. 122, 123. This is the modem English rule. Even those courts which refuse to give relief to the defendant if it is shown that he had the means at hand whereby he might have investigated the fraudulent statements of the plaintiff, all hold that, where a party resorting to fraud used artifice reasonably calculated to prevent inquiry, they will offer relief. Id. p. 123. It will be seen that there was artifice used by Lasley when he folded the paper containing the contract in such a manner as to obscure from the vision of the defendant that part of the paper above the crease, which, if it had been seen, would have put him on his guard and acquainted him with the true purport of the instrument. In addition to this the evidence discloses the fact that not only did Lasley make the false representations and by artifice conceal a material part of the paper, but at the time the defendant was very busy about his duties, and that, when coupled with the conduct of Lasley is, we submit, a complete answer to this suit. It would seem that the defendant might well rely solely upon the first case cited by the appellant as sufficient authority to show the correctness of the ruling of the trial court. [MAJORITY — Mr. Chief Justice Shefabd] Mr. Chief Justice Shefabd delivered the opinion of the Court: The amount in controversy is small, but the principle involved in its determination is an important one. After full consideration we are of the opinion that the court erred in not instructing the jury to find for the plaintiff. In his testimony the defendant did not pretend that the execution of the contract or order was obtained upon the condition that it was not to take effect until the occurrence or performance of a precedent, independent condition, as was the case in Donaldson v. Uhlfelder, 21 App. .D. C. 489, 493. Nor does his testimony present the case of a separate oral agreement concerning a matter about which the contract is silent, and that is not inconsistent with its express terms; and where, also, there are circumstances from which it may fairly be inferred that the instrument executed was not intended to be a complete and final statement of the whole transaction and agreement between the parties. See Purity Ice Co. v. Hawley Down Draft Furnace Co. 22 App. D. C. 513, 592, 59, where the question is considered, though not expressly decided. In this consideration, it is proper to remark that we attach no importance to the printed indorsement of notice that “no scales are placed on trial,” for it is not made one of the stipulations of the order that was executed. Under some circumstances, such an indorsement might possibly have some weight as tending to show notice of limitation of the powers of the selling agent; but no such question arises here. The practice of attempting to incorporate conditions in a contract by indorsement of same upon the back or any other part thereof is one not to be encouraged; and there seems to be no greater reason for holding a party bound by such indorsement on a contract of this nature, unless observed and assented to by him, than in the case of a carrier’s contract for transportation. Boering v. Chesapeake Beach R. Co. 20 App. D. C. 500, 510, 193 U. S. 442, 449, 48 L. ed. 742, 744, 24 Sup. Ct. Rep. 515. This point, however, is not directly involved. Tbe defendant’s evidence does not tend to show that there was any actual mistake in fact in the terms of the contract, or fraud in procuring his signature. While he said that the blanks in the paper had not been filled at the time of its execution, with the writing now shown therein, yet the written words are in complete accord with his own statement of the terms of payment; namely, that the purchase price was $65; that $10 were payable on delivery, and the remainder at the rate of $5.50 per month; and that his old scales were taken in part payment at the price of $5, thereby reducing the first payment, one half. Moreover, these terms are inconsistent with the condition that he seeks now to incorporate into the contract; namely, that he was to take the scales on trial for thirty days, with the privilege of return if not satisfactory. By that condition he would be relieved of the express promise to pay $10 upon the delivery of the scales. The single fact of imposition upon which he relies is that the plaintiff’s agent represented the order to be a receipt. It appears, nevertheless, that the paper containing the general terms of the sale, which he admits, was presented to him for signature; that he was able to read it, and there was nothing done to prevent his doing so. His only excuse for not reading it is that he was in a hurry at the time. The mere fact that a contract presented for signature to one who is able to read and understand it fully, and who is not prevented from reading it by some artifice of the other party, is represented to amount to nothing more than a simple receipt, is not sufficient to avoid it on the ground of fraud. Something more is required to warrant such a finding. Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262, 294, 118 U. S. 153, 167, 44 L. ed. 1015, 1020, 20 Sup. Ct. Rep. 880. As was said in Upton v. Tribilcock, 91 U. S. 45, 50, 23 L. ed. 203, 205: “It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if be will not read wbat be signs, be alone is responsible for bis omission.” In a recent ease in this eonrt, where the attempt was made to escape the obligation of a contract on the ground that it was represented to be something different from wbat it was, it was said by Mr. Justice Morris: “But the paper was open to the appellant for examination; and if be signed it, as be says be did, without due examination, be has only himself to blame for his neglect to exercise due care in the premises.” Whiting v. Davidge, 23 App. D. C. 156, 165. Nor the reasons given, the judgment must be reversed, with costs, and the cause remanded for another trial in accordance with this opinion. Reversed.