95 Minn. 135 | Minn. | 1905
Action to recover from the defendants for jewelry alleged to have been sold and delivered by the plaintiffs to them. At the close of the evidence the trial court instructed the jury to return a verdict for the plaintiffs for the amount claimed. The defendants appealed from an order denying their motion for a new trial.
The complaint alleged that on August 21, 1902, the plaintiffs, at the request of the defendants, sold and delivered to the defendants the merchandise set forth in a certain writing attached as an exhibit, and made a part of the complaint, for which the defendants promised to pay to the plaintiffs the sum of $300. The exhibit which was signed by the defendants was in effect, so far as here material, a written order on the plaintiffs for the delivery of the jewelry, giving a list thereof, of the agreed price of $300, to be paid in equal instalments in four, eight,, twelve, and sixteen months; but, if paid in cash in ten days, a discount of six per cent, would be allowed. The exhibit also contained an independent agreement guarantying the defendants a certain specified average annual profit on the jewelry purchased pursuant to the contract, upon compliance by them with five specified conditions.
The answer denied each allegation of the complaint “not hereinafter specially answered.” It denied that the defendants ever knowingly signed the contract made a part of the complaint, and alleged that the signature of the firm name of the defendants was obtained to a document which the defendants now believe may be the contract set out in the complaint by fraud and without consideration. It then proceeds to specify the alleged fraud, which was to the effect that the agent of the plaintiffs presented the document to one of the defendants, and falsely represented to him that the agent of the defendants in charge of their branch store had recommended and requested that they execute:
The defendant who signed the firm name to the contract was called as a witness on their behalf, and testified that he signed it. He was then asked to state what statements were made to him by the plaintiffs’ agent to induce him to sign the contract. This was objected to by the plaintiffs as an attempt to vary a written contract, and not admissible under the pleadings. The court sustained the objection and similar objections to the other offers on the part of the defendants to show that the execution of the contract was obtained by fraud. When the defendants rested, the court instructed the jury to return a verdict for the plaintiffs.
The rulings, of the trial court upon the several offers of evidence referred to are here assigned as error. If the answer alleged facts sufficient, if proven, to sustain a verdict that the execution of the contract was obtained by fraud, the trial court erred in excluding the offered evidence; otherwise not. The allegations of the answer are' obviously insufficient, for the only representation alleged in the answer made to the defendant executing the contract was that the agent in charge of the branch store recommended and requested the execution of the contract. There is no allegation that the representation was relied upon and believed to be true, or that it was the inducing cause of the execution of the contract. True it is that there is an allegation that a false representation as to the purport of the contract was made to the agent of the defendants, but it is in no manner con
Order affirmed.