4 Willson 364 | Tex. App. | 1891
Opinion by
§ 224. Contract; failure of consideration; representations, etc., of agent binding on principal; rescission of contract; fraud; case stated. Appellant sued appellee in the justice’s court for the sum of $154. This amount was the alleged contract price of twenty-eight volumes of the works of Bancroft, agreed to be paid appellant by appellee. It was claimed by appellant that he had de
As matter of law the trial judge found that the sole inducement for appellee’s subscription to said historical works was Hatch’s promise and agreement that a biographical sketch of appellee should appear with that of other prominent political and business men of Galveston and Texas, associates, friends and acquaintances of appellee, in the forthcoming volume of Texas history, and, appellant having wholly failed to mention appellee in said history, as promised, the consideration wholly failed and rendered appellee not liable in the contract. Appellant filed exceptions to answers of appellee, based upon the theory that said answers sought to vary the written contract entered into by appellee after admitting his signature to same. The appellee admits signing the order, but he alleges that, after so signing it, it was altered and changed by adding thereto without his consent or knowledge; but that matter will not affect the result of the case as we view it, therefore it will not be noticed. Do the matters and things set up in the answer seek to vary the written order for the books? We think not. By the answer it is not proposed to vary the contract in any manner, but only to avoid its effects and terms in toto. It is not proposed to change, alter or vary any of the terms or expressions of the written order, but it is proposed to defeat it in its entirety, because it was obtained by fraud and misrepresentations.
Appellant proposed to prove by Hatch and Stone that Hatch, as agent of appellant, had no authority to agree with appellee or promise him to include his (appellee’s) biographical sketch in the forthcoming volume of Bancroft’s works. This testimony was objected to, and the objections sustained, and the testimony was excluded. Appellant urges error on this ruling. Hatch was the trusted agent of appellant to gather up material in Texas for the history of Texas, as well as to sell the books. This is proven by appellant. He had the authority to secure the biographical sketches and memoranda for the proposed and contemplated volume of the history of Texas. He "was securing this information as he could, and in many instances in the city of Galveston. Several of Galveston’s prominent citizens were interviewed', whose biographical sketches were introduced into a former volume of the Bancroft histories. Hatch’s contracts and acts in this respect were fully recognized and indorsed by his principals. Hatch’s authority was recognized and indorsed by appellant in the matter involved in this suit, as is fully evidenced by the letter incorporated in the record. Not only so, but the suit itself against the appellee, taken -with the facts of the case, show not only Hatch’s authority, but appellant’s indorsement and ratification of Hatch’s acts and contract. “That a party is agent for another does not render such other liable for every contract the agent may make. To be binding upon the principal the contract must come within the apparent scope of the agent’s authority. With regard to special agents the rule is that if the agent exceeds the special and limited authority conferred on him, his principal is not bound by his acts, but they become mere nullities, so
It is also contended that no reason is showrn why a rescission of the contract should obtain. Passing the intermediate steps taken by appellee to repudiate the contract, we find that on the trial he tendered the books to appellant, and set up the fraud and failure of consideration, and asked to be relieved of the contract on account of the fraudulent matters set up. . This he had a right to do. “In every case where a buyer has been imposed on by the fraud of the vendor, he has the right to repudiate the contract,— a right correlative with that of the vendor to disaffirm the sale when he has been defrauded. The buyer, under such circumstances, may refuse to accept the goods if he discover the fraud before delivery, or return them if the discovery be not made until after delivery; and then, if he has paid the price, he may recover it back on offering to return the goods in the same state in which he received them. . . . But the contract is only voidable, not void; and if, after discovery of the fraud, he acquiesces in the sale by express words, or by any unequivocal act, such as treating the. property as his own, his election will be determined, and he cannot after-wards reject the property.” [Benj. Sales, § 452. Authorities collated in notes a, b and c to said section 452.] “The party defrauded may, instead of rescinding the contract, stand to the bargain even after he has discovered the fraud and recover damages for the fraud; or he may recoup in damages if sued by the vendor for the price. • The affirmance of a contract by the vendee after discovery of the fraud merely extinguishes his right to
The case of Barrie v. Earle, 143 Mass. 1, is a case directly in point. In that case Earle subscribed for "one copy of the “Art Treasure of America,” in ten folios, at $15 each, as published? and agreed to pay for each portfolio as delivered. Two deliveries were made, and the requisite $30.was paid therefor. Later on two more deliveries were made, but they were not paid for, and suit
Affirmed.