| Ark. | Nov 10, 1913
(after stating the facts). 1. While the written contract specifies that same can not be cancelled, the contract, when taken as a whole, shows that it was but an order for. the sale of goods. The case is controlled on this point by Toledo Computing Scale Co. v. Stephens, 96 Ark. 606" date_filed="1910-12-05" court="Ark." case_name="Toledo Computing Scale Co. v. Stephens">96 Ark. 606, and by Lee v. Vaughn Seed Store, 101 Ark. 68" date_filed="1911-11-06" court="Ark." case_name="Lee v. Vaughan's Seed Store">101 Ark. 68.
Notwithstanding the testimony of appellant’s agent, the traveling salesman, to the effect that he “accepted the contract then and there,” his testimony, taken together, showed that he only meant that he accepted the order. Appellant’s agent was a drummer, or a traveling salesman, and, as was held in Lee v. Vaughn Seed Store, supra, in the absence of special authority to bind his principal, a drummer can merely solicit and transmit orders, and the contracts of sale do not become complete until the orders are accepted by his principal.
It was a question for the jury, under the evidence, as to whether or not the order of sale was accepted before the same was countermanded by the appellee.
In Merchants Exchange Co. v. Sanders, 74 Ark. 16" date_filed="1905-01-21" court="Ark." case_name="Merchants' Exchange Co. v. Sanders">74 Ark. 16, we held that an order for a bill of goods is not a contract of purchase but merely a proposal which may be withdrawn at any time before acceptance.
The court properly instructed the jury in instruction No. 1 on the issue of whether or not the order was accepted before the same was countermanded by the appellee.
2. The court did not err in its charge to the jury on the issue as to whether or not the contract was signed by the appellee by reason of the false and fraudulent representations of the agent of appellant.
Appellee alleged in its answer that but for the representations of appellant’s agent set up in the answer, that appellee would not have executed the order for the goods; that the false and fraudulent representations in the procurement of the contract avoided the same, and, further, that appellant’s agent “fraudulently obtained the signature of appellee by virtue of the false and fraudulent representations.”
In French & American Importing Co. v. Belleville Drug Co., 75 Ark. 95" date_filed="1905-04-15" court="Ark." case_name="French & American Importing Co. v. Belleville Drug Co.">75 Ark. 95, we held:
“In a suit to recover for goods sold, it is a good defense that the order for the goods was procured by false representations, knowingly made by plaintiff’s agent as to material fact with the intent to mislead and which misled defendant to its injury.”
False and fraudulent representations that are about' a material fact which was the inducement or procuring cause of a contract, will avoid the same. Here the alleged representations, set up as the inducement to the^ contract, were material. The appellee had the right to rely upon them.
Appellant, to sustain its contention that the court erred in admitting testimony tending to show false representations on the part of appellant’s agent, and also erred in submitting this question to the jury in its instruction, relies upon the case of Outcault Advertising Co. v. Bradley, 150 S.W. 148" date_filed="1912-10-07" court="Ark." case_name="Outcault Advertising Co. v. Bradley">150 S. W. 148, 105 Ark. 50. That case was disposed of upon the theory that the testimony set up, as an inducement to the contract, was in the nature of parol declarations which tended to contradict or vary the terms of the written contract. The question as to whether or not the declarations were material and whether or not they were the cause of the contract and as to whether or not they were fraudulent and ■ relied upon by the appellee in entering into the contract were not discussed in that case. Indeed, from the statement of the case, it does not. appear that the alleged fraudulent representations were made for the purpose .of procuring the contract, or that they were a material inducement to the contract. If such had been the case, the testimony would have been competent and should have been admitted, but, as before stated, the court did not dispose of the case on that theory. An examination of the facts of that record will discover that the cause was correctly decided, for the reason that the answer did not set up the alleged representations as a material inducement to the contract, and, further, for the reason that the alleged representations were not material, and such representations as the appellee in that ease had the right to rely upon. The appellee in that case did not have the right to rely upon the representations, for the reason that the opportunity was at hand for ascertaining the falsity of such representations. See Cardwell v. Dennis, 101 Ark. 603" date_filed="1912-01-15" court="Ark." case_name="Carwell v. Dennis">101 Ark. 603. By inquiry of the local newspaper, the appellee could have found out whether or not the representations were false before he entered into the contract. The case, for the reason stated, was correctly decided, . but the questions now under consideration were not discussed, and, therefore, that case is not authority for the appellant’s contention in the case at bar.
•The court correctly told the jury that if the contract was changed from $2 a week to $2.08 a week that that would be such a material change as to vitiate the contract, and there was testimony to warrant the submission of this question to the jury.
We find no error in the record, and the judgment is affirmed.