Warder v. Whitish

Sep 23, 1890
Versions:46 N.W. 540
77 Wis. 430
1890 Wisc. LEXIS 220
Cassoday, J.

Tbе finding of tbe jury in favor of tbe defendant is to tbe effect that be was induced to sign tbe written contract by tbe false representations of tbe plaintiff’s agent, and that tbe real contract of purchase was in effect as alleged in tbe defendant’s answer. There is еvi dence sufficient to support tbe verdict. It remains to be considered whether therе were any errors upon tbe trial.

1. Error is assigned because tbe court refused ‍‌​​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​‌‌​‌​‌​‌​‌‌‍to instruct that “ if tbe jury believes that the contract described in, the complaint was entered into bеtween the plaintiff a/nd defendant, tbe jury is instructed that it was tbe duty of the defendant to give tbe mаchine a second trial, in tbe presence of tbe company or its agent, ‍‌​​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​‌‌​‌​‌​‌​‌‌‍befоre returning tbe same.” By tbe terms of this instruction, tbe jury would only have been required to consider thе same, in case they believed “ that tbe contract described in tbe complaint was entered into between tbe plaintiff and tbe defendant.” Tbe verdict in favor of tbe defendant is cоnclusive that tbe jury never *433so believed, and hence, had the instruction been given, the jury would nеver have reached the point where, under such instruction, they would have been called upon to consider it. Besides, the court charged the jury, in effect, that if the defendant knowingly signed the alleged written contract, as claimed by the plaintiff, then the defendant was bound by the written contract, including the clause in respect to a second trial. The evidence is also conclusive ‍‌​​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​‌‌​‌​‌​‌​‌‌‍that there were two trials of the machine under the supervision of the plaintiff’s agent,— one in the forenoon, and one in the afternoon; thаt the result of such two trials was that the agent promised to send an expert for another trial, but that no expert came until after the defendant had bought another machine and was in the act of returning the one in question. Under these circumstances there seems tо have been no error in rejecting the instruction.

For the reasons given, the court was justifiеd in refusing to give the second instruction assigned as error, respecting such second trial of the machine.1

2. Error is assigned because the court refused to charge the ‍‌​​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​‌‌​‌​‌​‌​‌‌‍jury that, “ the сourt instructs you that the defendant, John Whitish, should have used reasonable care to prevеnt mistake or imposition by causing the order and warranty to be read to him by some one in whom he had confidence, before signing.” This is not the case of a party, in the absencе of fraud or mistake, failing to know the contents of a written instrument signed by himself by reason of his own nеgligence or want of reasonable care, as in the cases cited by the leаrned counsel for the plaintiff and many others which might be- cited, as, for instance, Herbst v. Lowe, 65 Wis. 316, where thе distinction between those cases and cases ‍‌​​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​‌‌​‌​‌​‌​‌‌‍like this is pointed out. Certainly no one wifi con*434tend that a person can procure the signature of a party to a contract by false representations, and then enforce the contract on thе ground that, had the party so deceived been more vigilant, he would have discovered the fraud in time to have withheld his signature from the contract. In other words, a person cannot procure a contract in his favor by fraud, and then bar a defense to it on the ground that had not the other party been so ignorant or negligent he could not have sucсeeded in deceiving him.

3. Exception is taken because the court in effect chаrged the jury that if the oral contract was that the defendant should not be obliged to take the machine on the trial of it unless he chose to do so, then he might reject it whether it wаs capable of doing good work or not. This charge was simply to the effect that such was the rule in case such was the contract. This ruling is sustained by the repeated decisiоns of this court. Exhaust Ventilator Co. v. C., M. & St. P. R. Co. 66 Wis. 218; S. C. 69 Wis. 454; Bayley v. Anderson, 11 Wis. 420. See, also, Silsby Mfg. Co. v. Chico, 24 Fed. Rep. 893; Besides, it is undisputed that two trials of the machine were made in good faith under the supervision of the plaintiff’s agent, and it is virtually conceded that its work was unsatisfаctory, otherwise the agent would not have sent for an expert to give it another trial.

There seems to be no material error in the record. The questions involved are fаmiliar to the profession, and further discussion is unnecessary. The jury having determined all contrоverted facts in favor of the defendant and against the plaintiff, there is no escape from the conclusion reached.

By the Court.— The judgment of the -circuit court is affirmed.