Barrie v. Smith

105 Ga. 34 | Ga. | 1898

Lumpkin, P. J.

An action was brought by Barrie against Mrs. W. C. Smith upon a contract of subscription for a speci— tied edition of “Balzac’s Comedie Humaine,” which the defend-: ant was induced to sign by the plaintiff’s agent. The edition: consisted of forty-six volumes. After taking and paying for seven volumes at the contract price, Mrs. Smith refused to receive or pay for any more of them. Her defense to the action, was, in substance, that she had subscribed for the books upon the faith of representations made by the plaintiff’s agent, that they were suitable for a family library; but that upon reading; a portion of the same she ascertained that they were immoral; and unfit for females or children to read. She paid for the seven volumes before she had time to read the same or investigate their character, but after being informed thereof she offered to rescind. The court, over the objection of the plaintiff, permitted the defendant to testify: “the agent represented the books to be of a very high order, and that only a thousand copies would be sold, when the plates would be destroyed, and that he was allowed to sell only three copies in a place as small as” Elberton, the town where the subscription was taken. The contract was in its terms plain and unequivocal, and among other things contained a stipulation that “no other conditions or representations than those herewith printed will be binding upon the subscriber or publisher.” It contained no representation whatever as to the moral character of Balzac’s works.

We are satisfied the court erred in admitting this evidence. The stipulation above quoted was manifestly designed to prevent the plaintiff’s agent from binding his principal by any representations whatever other than those expressed in the contract itself. This evidence was therefore inadmissible, because it directly contradicted 'and varied the terms of the written instrument. In the case of Gorham v. Felker, 102 Ga. 261, a somewhat similar question was presented, and the ruling of this court thpreon is in point in the present case. It is proper to state, in this connection, that there was no contention on the part of Mrs. Smith that she was ignorant of the contents of the instrument when she signed it, or that any fraud was used to mislead her as to its true meaning and effect. The case therefore differs materially from that of Barrie v. Miller, 104 Ga. 312. There it appeared that thg publisher’s agent falsely and fraudulently misrepresented to the subscriber the meaning of certain technical terms used in the contract, and consequently the latter was induced to sign an instrument meaning one thing which he, because of the agent’s fraud, honestly believed meant another.

Judgment reversed.

All the Justices concurring.