104 Ga. 312 | Ga. | 1898
Barrie sued Miller on a contract for the sale of certain pictures, described as “The Edition de Luxe of Art and Architecture,” the contract further stating that a special feature of the edition would be an “ aquarelle facsimile matted in a separate fascicule.” In the contract was the following stipulation: “No other conditions or representations than those herewith printed will be binding on either [of] the principals.” Miller pleaded in substance, that one Green, the agent of the plaintiff, induced him to subscribe for the pictures described in the contract, falsely and fraudulently representing that the same would be an “ artist proof edition ” ; that the expressions used in the •contract do not show on their face whether or not they represent the kind of pictures contracted for; and that the defendant, being unlearned in the technical terms of art, and relying on the representations of plaintiff’s agent, signed the contract, believing that he would receive an artist proof edition of the pictures; that the terms used are ambiguous, and may or may not mean an artist proof edition. He further alleges that some time after signing the contract he discovered that the agent of plaintiff was not soliciting subscriptions for an artist proof edition, and that he thereupon wrote to plaintiff and offered to rescind; that the plaintiff received notification of this offer, but in spite of this notice, and a further notice to the agent, sent defendant by express a box, the contents of which he is ignorant, but supposes it to contain the pictures; that at his instance the express company has informed plaintiff, that the box remains in the office at the risk of plaintiff; and that for these reasons he is
The stipulation in the contract that the seller will not be bound by any representations other than those printed thereon can have no bearing in a case where fraud in procuring the signing of the instrument is the issue. Civil Code, §3669. Nor is it material in the present case that the defendant saw a sample of the goods sold. He offered to rescind before the arrival of the pictures in the express office, and has never opened the box which contains them. But even if he had, the pictures may come up to the sample and then not be.an artist
Judgment affirmed.