Folkes v. Pratt, 86 Miss. 254

Folkes v. Pratt

86 Miss. 254 | Miss. | 1905

Teult, J.,

delivered the opinion of the court.

The court should have permitted the appellant to prove, as she asked, that the goods received from the appellees were not of the quality represented, and that they defrauded the appellant by the substitution of a quality of goods not contemplated by the contract and not ordered, and that complaint was made just as soon as the fraud was discovered. The offer to make this proof was made in due time by the appellant, and was" denied by the court on the ground, presumably, that the contract recited that, as a condition precedent to the establishing of any claim arising from a breach of warranty, the purchaser should notify the seller, within five days of the receipt of the goods, of any objection on account of failure of the goods in quality or other respect. The court overlooked the elementary proposition that fraud vitiates all contracts, and that the conditions- of a contract are predicated of the idea that it is an honest un*260dertaking. So a requirement that the seller should be notified of any mistake or shortage in the goods purchased, within a reasonable stated time after the receipt thereof, would, if the contract was itself fair and honest, be conclusive. In this case, however, the appellant offered to prove that she had been defrauded by a substitution of different and inferior goods to those ordered, and that this was the result, not of mistake, but of a preconcerted design to defraud. The appellant also offered to show that, owing to the peculiar nature and character of the goods ordered, consisting of many dozen bottles of perfumes, toilet water, and boxes of face powder, and the like, the short time granted by the contract within which to make examination was unreasonable, and imposed an impossible condition, it being impracticable to examine the amount of such goods as are here involved within the limited time allowed. The court should have admitted the proffered evidence, and, if it tended to support the charge of fraud, should have allowed the jury to pass upon the case, and say whether or not the contract was carried out fairly and according to the mutual intentions of the parties, or whether it was a fraudulent scheme, devised and intended to entrap the unwary. This conclusion does no violence to the general doctrine that parol proof is inadmissible to vary the terms of a written contract, for the reason above indicated, and because of the fundamental principle of justice which protects the innocent from the fraud of the dishonest and designing.

Reversed and remanded.