This action was brought before a justice of the peace. The statement filed alleged that on September 18, 1903, and prior thereto; plaintiffs were partners; that on that day the defendants gave a written order to plaintiffs for goods, wares and merchandise, amounting to $180.60; that on receipt of the order, plaintiffs delivered such goods, wares and merchandise to the defendants in accordance with its terms and amounting to the sum mentioned; that defendants promised to pay plaintiffs said sum for the said goods, wares and merchandise, but refused to pay, and plaintiffs seek judgment for the debt. The evidence goes to1 show that a
PARIS MANUFACTURING & IMPORTING CO.,.
MANUFACTURING CHEMISTS AND PERFUMERS.
Corner Main and Walnut Streets, St. Louis, M'o.
For redemption of advertising coupons we will furnish free
Retail
1 Doz. Card Perfumes................$1.20
1 Doz. Card Perfumes................1.80
1-2 Doz. Perfume for Handkerchief...... 1.50”
(Here follows a list of various articles concluding with) :
“Total for advertising purposes......$25.00.”
(Following the above list is a list of eight articles amounting to $7.50 in value, furnished free to apply on the freight charges of the goods.)
“Warranty. — We warrant that the goods shipped will be taken from the same general stock as salesman’s samples. ■ Should any article fail to give your customer entire satisfaction we will refund the price to him or furnish a new article free of cost provided not more than one-fourth the contents has been used.
“Exchange. — Any goods in this assortment may be exchanged or returned for credit on a reorder at any time within eight months from date of invoice, or at any time thereafter provided the reorder be twice the amount returned.
“Return Cash Purchase. — Eighteen months from date of settlement if made as agreed herein, if the
“Terms of Settlement. — One-fourth of the amount due in three months, one-fourth in six months, one-fourth in nine months and one-fourth in twelve months without interest. A discount of one per cent per month (twelve per cent per year), will be allowed for cash in ten days. The above terms of credit will only be allowed in case account is closed by notes within ten days from date of invoice: othenvise net cash thirty days. The vendor shall have a lien on all goods furnished until settlement is made.
“assortment.
2 Doz, Card Perfumes................$ .75
2 Doz. Card Perfumes.................1.25
3 Doz. Perfume for Handkerchief......2.00”
(There are thirty-four other kinds of articles in the list, of various values and malting a total of $180.60. These were the goods ordered by defendant Afterwards, the statement follows that one hundred bottles of two different sizes, with corks for same, were furnished free of charge.)
“Free with the above assortment one $24 oak show case. This case is well made, is four feet long, forty inches high and twenty-four inches deep, wood doors and shelves.
“The Paris Manufacturing & Importing Co. will send out coupons to each of one-hundred persons, the names and addresses to be furnished by customers, said coupons to be redeemed with goods furnished for such purpose in the above order and the coupons to be good
“Neither party shall be bound except as herein expressly agreed, and time is the essence of these agreements.”
“Sept. 18, 1903.
“Paris Manufacturing & Importing Co.
“Gentlemen. — On approval please ship the above mentioned goods via convenient transportation companies.
“(Customer’s Signature)
Carle & Mahn,
“(P. O. Address) per Mrs. Mahn.
“Cape Girardeau, Mo.
Freight Station.” . . . .”
“E. B. Deane.
“Salesman........
“Exhibit A.
“James E. King, Notary Public.”
Although the order is signed, “Carle & Mahn, per Mrs. Mahn,” Mrs. Carle swore she signed it. It seems that the goods ordered were to be packed in a showcase, and the defense is that Deane represented to Mrs. Carle that the plaintiffs sold bills of goods amounting to twenty-five dollars, which were packed in a small show case, and other bills amounting to $180.60 which were packed in a large case; that Mrs. Carle verbally ordered a bill of merchandise amounting to twenty-five dollars to be packed in a small case and signed the order for the large bill under the impression that it was for the small one. She swore she did not read the contract over before signing it but that Deane read part of it to her and she misunderstood its terms or was misled by him regarding them. We copy portions of her testimony:
“I cannot state just the date I saw Mr. Deane first, but it was in the week that we ordered the goods, and he was in my place the third time before we made the or
“Q. Why did you not read that order? A. Mr. Deane read me part of the order but kept it in his hands; I never had the order in my hands except to sign it.
“Q. Then when he read the order and he told you of the sizes of the cases, did you tell him what size you wanted? A. Yes, sir, and measured right on my counter just the place it would fit, and I told him I could not handle the larger case.
“Q. He measured on the counter just where it would fit? A. Yes, sir.
“Q. What did he say it would cost? A. $25 case that would be, and that is what I thought Í was getting.
“Q. When the case came was it the size that he measured on your counter? A. No, sir..
“Q. What was the difference? A. Well, the case I got must have been five feet in length, it was quite a good deal larger.
“Q. How much larger? A. Well, the one I ordered was about two or two and a half feet, and this was five feet long.
“Q. You say you could not use the five-foot case as you had no' room for it, and he said he could send a smaller case? A. Yes, sir.
“Q. When it came what was the size of the one you received? A. I did not measure it, I should estimate it at five feet.
“Q. Mrs. Carle, I believe you said you never read the order that Mr. Deane presented to you? A. No, sir.
“Q. Is this the order he presented to you? (Wit
“Q. Did he refuse to let you read this order? A. No, sir.
“Q. How long have you been acquainted with Mr. Deane? A. Never knew him; I knew what his business was, knew his office was across the street, and that he was in and out over there.
“Q. Is this the only knowledge you had of him? A. Yes, sir.
“Q. You did not ask him to let you read this contract? A. No, sir.
“Q. Now, why is it that you did not know what you were buying? A. Because he stated to me what I was buying.
“Q. You did not ask him to see this agreement? A. No, sir; he read off Avhat would make the $25 worth.
“Q. And you supposed you were to get the case and the goods for $25 ? A. A small case, not the large case, as I told him I could not handle that, as I had no room for it.
“Q. Then you supposed you were getting all these goods and the case for $25. A. Not those goods, but $25 worth of goods.
“Q. And then a case? A. No, they furnished the case, and there was no charge for the case.
“Q. The goods were only to cost you $25? A. Yes, sir: that was the amount I wanted to try.
“Q. And you refused to read the Order? A. I did not refuse to read the order, but I did not read it.
“Q. You signed it? A. Yes, sir.
“Q. Now, Mrs. Carle, you said he only read a part of the order; hoAV do you knoAV that? A. I know that he
“Q. Can yon state what he did read? A. No; sir; I conld not tell yon, but I told him to- select $25 of the best articles, and we would leave it to his judgment to put up a small case.
“Q. Did he tell you this order was for $180.60? A. If I took the whole order, but it was understood that I did not take the whole order.
“Q. But he told you the order was for $180.60? A. Yes, sir; if I took the whole order.
“Q. You did not watch to see him mark out any of the order? A. He said he would put up a $25 case.
“Q. Why didn’t you make him mark off the articles so as to make $25? A. That would have been proper.
“Q. You signed the order just as it was, knowing that it amounted to $180.60. A. Yes, I signed that order.
“Q. Knowing that it was $180.60? A. I knew ther full order was $180.60, but I thought I was getting only $25 worth?
“Q. You knew that it called for $180.60? A. I knew all that. .
“Q. You say that he told you you were only to get $25 worth? A. Yes, sir.”
Deane testified that plaintiffs -sold no bills of goods amounting to- twenty-five dollars packed in small cases, but sold bills of only one amount. It seems that a show case was furnished free of charge to- customers. Mrs. Carle testified that she measured on her counter, to see what ro-om she could afford to give to a case, and told Deane she could use none but a small one. Deane testified that she made -some objection to- the size of the case on account of her lack of room, and he told her they had small cases, too, and she could put goods out o-f the larger case into the small one and keep the latter o-n the counter. He swore that this matter was talked over and
Plaintiffs requested an instruction that if tbe jury believe tbe goods were ordered in writing by defendants, tbe verdict must be for plaintiffs, notwithstanding tbe jury believed one of tbe defendants had told plaintiffs’ salesman that defendants only wanted twenty-five dollars worth of goods. An instruction was given declaring that if defendant signed tbe order knowing it called for goods amounting to $180.60, tbe verdict must be for plaintiffs. For defendants, tbe court instructed that before there could be a contract of sale, tbe minds of tbe contracting parties must meet as to tbe terms of sale; and if tbe jury believed tbe parties to tbe contract in question did not fully understand and concur in it, no sale was made and tbe verdict should be for defendants, and if defendants were misled by tbe statement of plaintiffs’ salesman as to tbe quantity of goods defendants were purchasing, and signed tbe contract in tbe belief that it contained a far less amount than it did, defendants bad a right to refuse to accept tbe goods; and if they were resbipped to plaintiffs within a reasonable time after tbe mistake was discovered, tbe verdict must be for defendants; that if tbe goods shipped to defendants ex-
It is apparent at a glance, that this judgment cannot stand. The case was tried and instructed on a wholly erroneous theory. The instructions to the jury left entirely out of view the question of whether defendants were fraudulently imposed on by plaintiffs’ agent, and one of the instructions went so far as to give defendants the right to repudiate the contract if the plaintiffs shipped more goods than defendants ordered. There was no contention that the bill of the goods, which amounted to $180.60, exceeded the amount called for by the written order. In truth, the bill and the order exactly coincided. The only conceivable theory on which a defense could be established was, that plaintiffs’ salesman fraudulently procured Mrs. Carle to sign the order by falsely stating its contents to her. In other words, that there was fraud in procuring the execution of the contract. No complaint was made about the quality of the goods, the sole objection being- that plaintiffs •shipped more goods than it was understood between Mrs. Carle and Deane defendants would purchase.
We are cited to certain cases in which it was said that if one party to a written contract procured the signature of the other, whether by fraud or otherwise, and the instrument did not contain the contract actually made, but a different one, the parties signing were not bound. [Beck etc. Co. v. Obert, 54 Mo. App. 241.] There are several decisions of that tenor in this State, all founded on the cases of Briggs v. Ewart, 51 Mo. 249, and Wright v. McPike, 70 Mo. 175. Those cases have been directly overruled and are no longer the law. [Crim v. Crim, 162 Mo. 544, 63 S. W. 489; Layson v. Cooper, 174 Mo. 211, 73 S. W. 472.] The rule now is that unless
The only question Ave have been in doubt about is whether the case ought to be remanded for a trial of the issue of fraud in procuring Mrs. Carle’s signature. There seems to have been some stress laid on the fact that Deane worked for a commission and Avas interested in increasing the order. But a study of Mrs. Carle’s own testimony has convinced ns that there is no substantial evidence of any fraud practiced by Deane to induce her to sign the order. He did not deceive her about its contents and she nowhere says that he did. The contract was spread before her when she signed it. Her contention is that more goods were shipped than she and Deane understood defendants were buying. She
The judgment avüI be reversed and the cause remanded with the direction tó enter judgment in plaintiffs’ favor for the amount of the bill and interest.