163 Iowa 644 | Iowa | 1914
The petition, which was filed March 10,1910, sets out an alleged written contract with the defendants, whereby defendants ordered and agreed to pay for certain “fashion sheets” to be delivered in monthly parts, or in installments covering a period of five years unless sooner revoked upon giving a stipulated notice. Plaintiff says that upon the terms of said writing it sold and delivered to defendants goods to the amount of $98.74, and that said sum of $98.74, with interest thereon from November 30, 1909, is due and unpaid. The demand for judgment is in the following form: “Wherefore plaintiff demands judgment against the defendants for the sum of $98.74, with interest thereon according to law, and for the costs of this action.” Answer
Appellant has included in its abstract what purports to be an amendment to its petition filed in April, 1913, long after the appeal was taken, increasing its demand for judgment to $287.74, but it is so obviously unauthorized that we think it cannot be regarded as affecting the issues as they stood at the time of the trial. It is to be said, however, that our conclusion hereinafter announced upon the merits of the case renders the question of the time and effect of filing the amendment quite immaterial.
I. It is quite obvious that upon the face of the printed record the amount in controversy, as shown by the pleadings, is less than $100, and, there being no certificate for the allowance of an appeal, there is grave doubt whether this court has any jurisdiction of the subject-matter, but in view of the fact that such objection is not made or argued in the briefs, and the possibility that the apparent defect in the record may be attributed to an error of the printer or proofreader, and the further fact that we think the appeal cannot be sustained on the merits we shall proceed to consider it as if the showing of jurisdiction were unquestionable.
The fact to which our attention is called, that the written contract closes with the words, ‘1 Signed in duplicate after being read,” in no manner changes the legal effect of the situation. Defendant swears that he did not read it, and that he was induced to sign it without reading it by deception and fraud and artifice on the agent’s part and if this was so, there is no presumption that he knew these words were in the instrument, and it was for the jury to say what weight and value should be accorded to the testimony. It is not a rare thing to find that a writing charged to have been fraudulently procured contains declarations or statements that the party has read and understands all its contents, and that no representations or promises have been made to him except as shown by the writing, but it has never been held that such provisions are of themselves sufficient to estop him from pleading and proving a fraud practiced upon him. Indeed such unusual precaution in drawing a contract may sometimes justify suspicion of the good faith of the party preparing it.,
V. Some attention is given in argument to a provision in the contract relating to liquidated damages. In view of the issues presented and the finding of the jury we regard the question whether the contract does or does not provide for liquidated damages as of no materiality. The verdict returned could have been arrived at only on the theory that the defense of fraud had been established, and, such finding being made, there was nothing to which the rule or provision concerning liquidated damages could have any proper application.
Other points made in argument are controlled by those already discussed, and require no further consideration.
There is no error in the record necessitating a new trial, and the judgment of the district court is therefore Affirmed.