Toledo Computing Scale Co. v. Garrison, 28 App. D.C. 243

Toledo Computing Scale Co. v. Garrison

28 App. D.C. 243 | D.C. | 1906

Mr. Chief Justice Shefabd

delivered the opinion of the Court:

The amount in controversy is small, but the principle involved in its determination is an important one. After full consideration we are of the opinion that the court erred in not instructing the jury to find for the plaintiff.

In his testimony the defendant did not pretend that the execution of the contract or order was obtained upon the condition that it was not to take effect until the occurrence or performance of a precedent, independent condition, as was the case in Donaldson v. Uhlfelder, 21 App. .D. C. 489, 493. Nor does his testimony present the case of a separate oral agreement concerning a matter about which the contract is silent, and that is not inconsistent with its express terms; and where, also, there are circumstances from which it may fairly be inferred that the instrument executed was not intended to be a complete and final statement of the whole transaction and agreement between the parties. See Purity Ice Co. v. Hawley Down Draft Furnace Co. 22 App. D. C. 513, 592, 59, where the question is considered, though not expressly decided.

In this consideration, it is proper to remark that we attach no importance to the printed indorsement of notice that “no scales are placed on trial,” for it is not made one of the stipulations of the order that was executed. Under some circumstances, such an indorsement might possibly have some weight as tending to show notice of limitation of the powers of the selling agent; but no such question arises here. The practice of attempting to incorporate conditions in a contract by indorsement of same upon the back or any other part thereof is one not to be encouraged; and there seems to be no greater reason for holding a party bound by such indorsement on a contract of this nature, unless observed and assented to by him, than in the case of a carrier’s contract for transportation. Boering v. Chesapeake Beach R. Co. 20 App. D. C. 500, 510, 193 U. S. 442, 449, 48 L. ed. 742, 744, 24 Sup. Ct. Rep. 515. This point, however, is not directly involved.

*249Tbe defendant’s evidence does not tend to show that there was any actual mistake in fact in the terms of the contract, or fraud in procuring his signature. While he said that the blanks in the paper had not been filled at the time of its execution, with the writing now shown therein, yet the written words are in complete accord with his own statement of the terms of payment; namely, that the purchase price was $65; that $10 were payable on delivery, and the remainder at the rate of $5.50 per month; and that his old scales were taken in part payment at the price of $5, thereby reducing the first payment, one half. Moreover, these terms are inconsistent with the condition that he seeks now to incorporate into the contract; namely, that he was to take the scales on trial for thirty days, with the privilege of return if not satisfactory. By that condition he would be relieved of the express promise to pay $10 upon the delivery of the scales.

The single fact of imposition upon which he relies is that the plaintiff’s agent represented the order to be a receipt. It appears, nevertheless, that the paper containing the general terms of the sale, which he admits, was presented to him for signature; that he was able to read it, and there was nothing done to prevent his doing so. His only excuse for not reading it is that he was in a hurry at the time. The mere fact that a contract presented for signature to one who is able to read and understand it fully, and who is not prevented from reading it by some artifice of the other party, is represented to amount to nothing more than a simple receipt, is not sufficient to avoid it on the ground of fraud. Something more is required to warrant such a finding. Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262, 294, 118 U. S. 153, 167, 44 L. ed. 1015, 1020, 20 Sup. Ct. Rep. 880.

As was said in Upton v. Tribilcock, 91 U. S. 45, 50, 23 L. ed. 203, 205: “It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if *250be will not read wbat be signs, be alone is responsible for bis omission.”

In a recent ease in this eonrt, where the attempt was made to escape the obligation of a contract on the ground that it was represented to be something different from wbat it was, it was said by Mr. Justice Morris: “But the paper was open to the appellant for examination; and if be signed it, as be says be did, without due examination, be has only himself to blame for his neglect to exercise due care in the premises.” Whiting v. Davidge, 23 App. D. C. 156, 165.

Nor the reasons given, the judgment must be reversed, with costs, and the cause remanded for another trial in accordance with this opinion. Reversed.