Pictorial Review Co. v. Poller

18 Ga. App. 74 | Ga. Ct. App. | 1916

Bkoyles, J.

1. The court, having stricken paragraph 4 of the answer, erred in refusing to strike paragraphs 5, 6, and 9, as these latter paragraphs were so related to it as to be immaterial and unintelligible without it.

2. Under repeated rulings of this court, it is never error to refuse to direct a verdict.

3. The defendant relied upon a plea of fraudulent representations by the plaintiff’s agent, in procuring him to sign the contract under which the goods were sold, but the evidence wholly failed to sustain this plea. A verdict for the plaintiff was demanded, and, the jury having found for the defendant, the court erred in overruling the motion for a new trial.

Judgment reversed.

From the evidence it appeared that on December 27, 1911, the plaintiff signed a contract with the Pictorial Eeview Company for the purchase of patterns, etc., from that company in stated quantities and at stated times, and for fixed prices, in which it was provided that the, agreement was *to remain in force from date and for five years after first shipment of patterns.” The first shipment of patterns under the contract was made by the plaintiff on February 13, 1912. It was testified for the plaintiff that the account was correct, due, and unpaid, and that the plaintiff had complied with the contract in all respects. An agent of the plaintiff testified: “I solicited Abe Poller, . . the defendant, who signed a contract to handle a stock of Pictorial Eeview patterns. The contract he signed was in the usual form, and I explained every feature of it to him before he signed the contract. He understood fully what it was at the time he signed it. -I submitted the contract to defendant, and he looked at it some considerable time before he signed it. He talked with me about it also. The different features of the contract were discussed with him before he signed it. He looked at it and had opportunity to read it, and a sufficient length.of time to read it before signing it. I left him a carbon copy.” An employee of the defendant testified: “I was present when agent of plaintiff and defendant talked over a contract. . . I did not hear anything said as to how long the contract was to last.” The defendant testified: “I signed that contract; that is my signature. When I signed the contract I did not know it was a five-year contract. The man who got me to sign the contract stayed all day and persuaded me until I signed it. He told me that I could sell these patterns and that they would sell well, but they did not sell well, and a lot of them accumulated on my hands. I could not read much when I signed the contract. I can read better now. He did not tell me for how long a time the contract was to last. I did not ask him, but if I had known it was for five years I would not have signed it. I thought the contract was for one or two years probably. The patterns came according to contract and were all right, but they did not sell fast and they soon got out of style. I sent a few of the patterns back and got them exchanged according to contract. I sent all of them back after this suit was instituted and asked them to give me credit for them, but they refused to do it. After giving me credit for the patterns I sent back they are due me back $50 of the money I paid, and I paid for all the patterns I used and I do not owe them one cent, but the company owes me $50. I thought I could give up the contract at any time or at the end of any six-month period. I would not have signed the contract had I not been deceived as to the length of time it was for. I am a foreigner and ,do not understand English' language much. I could not read English but little when I signed the contract; I can’t much now, but have learned most I know about it since I signed the contract.”

Citations by counsel:

Civil Code (1910), § 5746; Bowe v. Gress Lumber Co., 86 Ga. 17 (2); Angier V. Equitable B. & L. Asso., 109 Ga. 625(3); Walton Guano Co. v. Copeland, 112 Ga. 321; Patapsco Shoe Co. v. Bankston, 10 Ga. App. 675 (2); Napier v. Central Georgia Bank, 68 Ga. 637 (5a); Coleman v. Coleman, 113 Ga. 149; Miller v. Roberts, 9 Ga. App. 511 (2).

P. C. Andrews, for plaintiff. M. L. Ledford, for defendant.