115 Kan. 769 | Kan. | 1924
The opinion of the court was delivered by
The Western Tractor Equipment Company sued Frank W. Ayers for damages resulting from his refusal to accept two threshers for which he had given a written order. He answered undertaking to set out a breach of the contract by the plaintiff and fraud in procuring its execution. A demurrer to the answer was sustained and the defendant appeals.
The order was obviously made by filling in the blanks of a printed form. It.read:
“WESTERN TRACTOR & EQUIPMENT CO.
Kansas City, Mo.
No. Date 3/
Charge to Frank W. Ayers Ship to Do
City or Town, Ludell, Ks. City or Town Do
How Car
Terms S. D. B. L. When, June 1st, 1921
2 26x46 Woods Bros. All Steel Threshers complete with weigher Feeder and Blower 1450 $2900.00
Less 20%
B. H. Issett, Frank W. Ayers,
Salesman. Dealer.”
2. The allegations relied upon as setting out fraud may be thus summarized:
The plaintiff’s agent as an inducement for the defendant to order the machines orally agreed that he would come to Ludell and assist in selling the machines, in order that they might be sold before their shipment; and that the defendant would be notified before shipment so that if they had not been able to find purchasers for them the order could be cancelled by wire. The agent then prepared a memorandum stating to the defendant that “it contained the agreements which had been made between” them. The defendant was running a garage and was a very busy man. He was busy waiting on customers while the agent was preparing the memorandum. When it was prepared the agent asked him to sign it “stating that the same was a memorandum of their agreement.” Several customers were waiting to receive the defendant’s attention and the defendant was in a hurry and “relied upon the representations of the said agent of plaintiff that he would come to Ludell and assist defendant in selling said machines before they were shipped, and that if they failed to sell the same that the order could be cancelled so they would not be shipped; and that plaintiffs would notify defendant in ample time before shipping so that there would be time to cancel the order; and defendant relied upon said agent’s statement that said memorandum contained said oral agreements, and said defendant did not read said memorandum but in haste signed the same where he was shown to sign by said agent ... all of the representations made by plaintiff’s agent, as set out in this defense were false and fraudulent and were falsely and fraudulently made by plaintiff’s
The judgment is affirmed.