111 Wis. 339 | Wis. | 1901
This action is based,upon a written order signed by the defendant for the purchase of an Ideal binder, manufactured by the plaintiffs. The defense is that the defendant was induced to sign said order upon the representation of plaintiffs’ agent that it was in accord with a verbal agreement to the effect that defendant might take the machine and keep it if satisfied with it, and if not satisfied with it he could return it at any time and not pay for it. The jury-found the issue for defendant as stated in the special verdict, and this finding is now challenged on the ground that the fraud alleged and found to have been perpetrated on the defendant by the misreading of the order was not established by that degree of proof that the law requires.
The facts are not numerous or complicated. The plaintiffs’ agent claims, and the defendant admits, that after they had their talk about the sale and purchase of the machine the written order was drawn up, was read to defendant by the agent at length, and then signed, and a copy of the order was delivered to defendant. The agent testifies that he read the order to him correctly. The defendant admits the whole order was read to him, but he claims that he cannot read English, and that he was deceived as to the contents of the order signed. His testimony as to the fact of deception is very meager and unsatisfactory. He does not claim that he misunderstood what was read to him. He does not testify, except in an indirect way, that his version of what the contract was was read to him by the agent. After reciting the talk had with the agent, and giving his understanding of the verbal contract, he was as'ked by his counsel to state whether or not that is what he (the agent) said the writing contained. To this he answered that he did not understand. He was then asked, “Did this man Percy say that was in this paper?” The answer was, “Yes, sir.” This is all the testimony given by him to the effect that the order was misread to him. On the one side we have a solemn written in
In absence of fraud or imposition, a man cannot relieve himself from the obligation of a written agreement by saying 'he did not read it when he signed it, or did not know what it contained. Sanger v. Dun, 47 Wis. 615; Albrecht v. M. & S. R. Co. 87 Wis. 105; Jackowski v. Illinois S. Co. 103 Wis. 448; McGowan v. Supreme Court I. O. F. 107 Wis. 462. Here it was claimed there was fraud and imposition, but it t is based upon testimony of such loose and flimsy character as that, if the written order stood alone, one would hesitate to turn the scale in defendant’s favor. The evidence of plaintiffs’ agent, although a somewhat interested party, is entitled to some weight. He is corroborated in the fact that the entire contract was read to defendant, and by the further fact that the defendant does not claim he misunderstood what was read to him. His only claim is that the agent told him that their verbal talk was embodied in the written order. The general rule is that fraud and imposition must be shown by clear and satisfactory evidence. The amount or weight of proof sufficient to show it is not a matter of exact legal definition. The proof, however, must be so strong and cogent as to satisfy a man of sound judgment of the truth of the claim. Bump, Fraudulent Conveyances, § 619. We disturb the finding of the jury with some reluctance, but we cannot persuade ourselves that the evidence in this case fulfills the requirements of
The question of whether the delivery of a machine of the make and in the condition this was when delivered was a compliance with the requirements of the written order was not litigated on the trial, and cannot now be considered.
By the Gourt.— The judgment is reversed, and the cause is remanded for a new trial.