64 Ind. App. 429 | Ind. Ct. App. | 1917
Action by appellee against appellant to recover the balance due on a written contract of sale. The complaint, omitting formal parts, alleges' in substance : That on April 29, 1914, appellee sold and delivered to appellant a gas tank under and by virtue of a written contract, a copy of which is filed with the complaint as an exhibit, wherein appellant agr'eed and promised to pay to appellee in thirty days from the date thereof $233. That the goods were shipped and delivered according to th£ terms of thé contract, but no part of the purchase price has been paid except the amount of $28, and that the sum of $205 is now due and remains wholly unpaid. That appellee has performed its part of the contract, and by reason of the premises there is now due appellee from appellant the sum of $205, with interest. The written contract referred to is in the form of an order signed by appellant and contains a provision, among others: “That this order shall not be countermanded; that it covers all agreements between the parties hereto, relative to this transaction.”
Appellant answered the complaint by general denial and a special paragraph of answer in which he seeks to show a rescission of the contract upon the ground of fraud. Appellant also filed a counterclaim identical with the second paragraph of answer, except that it asks for affirmative relief. Demurrers filed to the affirmative answer and to the counterclaim, each accompanied by memorandum, were sustained. Appellant re
For the purpose' of our discussion it will be sufficient to indicate the general tenor of the second paragraph of answer. Appellant claims that it is drawn on the theory of rescission of the contract for fraud. To Charge fraud the answer shows: That appellee falsely and fraudulently represented to appellant that only two tanks and equipment would be sold on Lincolnway, which was a part of the Lincoln Highway through the city of Laporte, Indiana, one to appellant at the east end of Lincolnway, and one to Henry Brothers at the west end of Lincolnway; that appellant was to have the exclusive right to use the emblem of the Lincoln Highway Association, which would be conspicuously painted on the exposed portion of the gas tank equipment in Lincoln Highway colors, and that the equipment with the emblem of the Lincoln Highway Association could not be purchased elsewhere; that these representations were made to appellant before he signed the order sued upon; that appellant relied on such statements as being true and was thereby induced to sign the order for the equipment and did deposit with appellee the sum of $28; that the moving consideration for the purchase of said equipment on the part of appellant was the false representations that he would have the only and exclusive Lincoln Highway emblem on his gasoline equipment at the east end of the city of Laporte on said Lincolnway and that he signed said order and paid said sum of $28 wholly on said false representations, believing them
Several objections or defects are pointed out by the memorandum, but it will be necessary to discuss only the fourth and seventh, which read as follows: “4th. That said answer does not show that the representations alleged were material t.o the making of the contract sued on. * * * 7th. That said answer does not show that defendant did not get what he contracted for or that he was injured or damaged by reason of entering into said contract.”
In McCaskey Register Co. v. Curfman, supra, 306, the court says: “In the case at bar appellant kept the means of protecting itself and also its customers from
In King v. Edward Thompson Co., supra, it is ex
There is no claim that appellant'did not get just what the written contract called for. His position is that he did not get the exclusive Lincoln Highway emblem, and that other equipments were sold on Lincolnway in addition to himself and Henry Brothers, and that other companies were furnishing Lincoln Highway emblems with their outfits. The written contract and order expressly specified certain goods but made no mention of “exclusive” rights. So far as the answer shows, "appellant signed the order without being deceived or misled as to its contents and therefore must be held to have assented to the terms thereof. Appellee delivered to him all that it agreed to deliver under such contract and’ now sues to recover the price fixed therein.
The representations alluded to, if material before the negotiations were closed by the written contract, certainly ceased to be. material after such written contract was executed. There is no claim or averment in the answer that a mistake was made in reducing the agreement to writing or that the written contract does not contain a correct statement of the terms of the agree
For the same reasons the counterclaim is insufficient to warrant the relief asked, and the demurrer thereto was properly sustained. Judgment affirmed.
Note. — -Reported in 116 N. E. 66. Fraud: rescission of sale, 43 Am. Dec. 654; 80 Am. Dec. 268; 93 Am. Dec. 207. See under (1) 35 Cyc 130, 539; (4) 35 Cyc 67.