Neyaus v. Dickinson Bros.

138 Ky. 760 | Ky. Ct. App. | 1910

Opinion of the Court by

Judge O’Rear

Reversing.

This suit is upon a written contract signed by the appellees, merchants, ordering* from appellant’s assignor a car load of stock and poultry food, and agreeing to pay for it $1,944.04-, as evidenced by their note appended to the order. The-defense was a special plea of non est factum. It is conceded that appellees signed the paper, but it is alleged that when it was signed, the printed note had not been filled out as to its amount., nor had the total amount of the cost of the goods been inserted in the blank in which it is now found. It was also charged that the writing was procured of the appellees by the fraud of the agent representing the seller, who, instead. of selling the goods to appellees, employed them as distributing agents only, they to receive the goods and send them out to the retail merchants in the country from whom the agent had already procured orders for small lots, and from whom other similar orders were expected. The goods were shipped to appellees, who received them, and who delivered some part of them on orders from the retail merchants, and collected the retail purchase price. Before the note matured, it was assigned to the appellant, who brought this suit upon it. It is not pretended that the goods were not worth the sum charged, or that they fell below the quality represented. The issue is the capacity in which appellees acted in receiving them. The circuit court adjudged — the case being tried in equity — that the writing was obtained by fraud. Appellees were required to pay for only so much as they had resold and collected the pay for, less their commission.

The testimony is sharply, conflicting as to what occurred at the time of the first transaction. Appellees sustairi their pleading. One of the agents — the one who wrote the contract and who was the one in authority — testified to the contrary, and sustains the writing. Anotheragent, the one who initiated - the negotiations with appellees; sustains their'version so far as he goes, but he admits that he was not paying much attention to what was said after the other agent took charge of the negotiations, and does not pretend to have heard all that then transpired. Nor, indeed, does he detail anything that transpired after the other agent took np the negotiations. If the parol testimony alone were looked to, we would not feel justified in disturbing the judgment. However, a number of letters were written by appellees to the seller, beginning shortly after the contract was signed and running through nearly a year. In tliese letters appellees admit the execution of the note, and that they had bought the food outright. Indeed, it is not questioned in the correspondence. Other complaints were then made, but which have no place in this suit. The goods were slightly damaged in shipping. Appellees filed their own claim against the railroad company for the damage and collected it. They solicited the sellers to give them an experienced salesman to go into the country and take orders for the food. 'In other words, not only the.writing itself, but every written memorial in the record, shows that appellees had bought the goods as the writing sued on shows. If -written contracts could be set aside so easily afterwards by mere preponderance of testimony, when contradicted by deliberately drawn statements signed by the party executing the original writing, then there is little security in 'written contracts, and their value in .law.is reduced-to the level of the subsequent election by the party sought to be bound whether he will be -bound. The law favors written .contracts. They afford less - opportunity for misunderstanding, and are less tempting to subsequent attempted evasions. They are more certain of establishment, are more conducive of just administration of business and of the law. They may, of course, be used to perpetrate frauds. Then the law lets them be overturned by parol evidence. But it must be clearly established that they do not represent the agreement of the parties before they should he so overturned.

This record convinces us that the parties themselves once understood the situation alike. There was then no dispute as to the fact that the writing had been executed, and truly set forth the agreement of the parties. The admissions of appellees against their present interest, as then made, ought to outweigh in its legal effect as evidence their present statements now made in their own behalf.

Whether appellant was a bona fide purchaser of the note is not material. It was assigned to him by the obligee. Ilis title is good if the obligee’s was. The issue of discount in due course, and all the evidence on that point, becomes immaterial when it is determined that the obligee itself might have successfully maintained this suit upon the note.

Judgment reversed, and remanded for a judgment in conformity herewith.