Opinion
3 Div. 423.
November 14, 1923. Rehearing Denied March 6, 1923.
Appeal from Circuit Court, Escambia County; John D. Leigh, Judge.
Action by J. B. Colt Company against J.E. Bozeman. From judgment for plaintiff, defendant appeals. Affirmed.
Defendant's pleas 2, 3, and 4 are as follows:
"(2) That the account sued on is for the purchase price of one Colt generator, model N, and fixtures for said generator; that the plaintiff, by and through its agent who made the sale, falsely represented to the defendant that he might rescind or countermand the order for said goods at any time within six months from the date of said order, to wit, August 7, 1917; that acting upon said representation the defendant did, within the said six months, rescind or countermand said order, by giving written notice, by letter mailed to the plaintiff, that he desired to rescind or countermand said order, and the defendant refused to receive or accept the goods shipped under said order; that the said false representation of the plaintiff was made willfully to deceive the defendant, and that it was of a material fact.
"(3) That the account sued on is for the purchase price of one Colt generator, model N, and fixtures for said generator; that the plaintiff, by and through its agent who made the sale, mistakenly represented to the defendant that he might rescind or countermand the order for said goods at any time within six months from the date of the order, to wit, August 7, 1917; that acting upon said representation the defendant did, on, to wit, October 15, 1917, rescind or countermand said order, by notifying the plaintiff of his desire to do so, and the defendant refused to receive or accept the goods shipped under said order; and that the said representation of the plaintiff was made by mistake and innocently, and that it was of a material fact.
"(4) That the account sued on is for the purchase price of one Colt generator, model N, and fixtures for said generator; that the plaintiff, by and through its agent who made the sale, falsely represented to the defendant that the contract of sale provided that the goods would not be shipped within six months from the date of the order, to wit, August 7, 1917, and that at any time within said six months the defendant might rescind or countermand said order; that the defendant acted on said representation, and did, within six months from August 7, 1917, rescind or countermand said order, by giving notice to the plaintiff of his intention to do so, and the defendant refused to receive or accept the goods shipped under said order; and that the said representation of the plaintiff was made willfully, to deceive the defendant, and that it was of a material fact."
Plaintiff's replication to plea 3 is as follows:
"For special replication to plea 3 by the defendant pleaded, the plaintiff says: That the cause of action is based upon the sale by plaintiff to defendant of one Colt generator and certain fixtures ordered by defendant from plaintiff under a written contract hereto attached and marked `Exhibit A'; that by the terms of said contract it was provided that said instrument, upon plaintiff's acceptance of said order, carried all agreements between the defendant and the plaintiff, and that said contract could not be canceled or revoked by either party, except by agreement in writing between the plaintiff and the defendant; and plaintiff avers that said order was accepted on the 13th day of August, 1918, and prior to any alleged countermand of said order by the defendant, and that since said date there has been no agreement between the parties allowing defendant to cancel said order."
To this replication defendant interposed the following grounds of demurrer:
"(1) Said replication is no answer to said plea.
"(2) The existence of the alleged written contract is not an answer to the matters set up in said plea relating to mistaken representation.
"(3) The fact that the contract was in writing would not relieve the plaintiff of the consequences of his alleged mistaken representation.
"(4) The fact that the contract was in writing and contained the statement that said instrument embraced the entire agreement between the parties would not preclude the defendant from setting up the mistaken representation as alleged in plea 3."
Leon G. Brooks, of Brewton, for appellant.
When the execution of a written instrument is obtained by a misrepresentation of its contents, and a party is induced by such fraud to sign an instrument he did not know he was signing, and which he did not really intend to sign, the party so defrauded can avoid the effect of his signature because of the fraud practiced upon him, notwithstanding he may have neglected to read the instrument or to have it read to him. 13 C. J. 371; 196 Ala. 285, 71 So. 684; 201 Ala. 548, 78 So. 902; 202 Ala. 7, 79 So. 305; 202 Ala. 367, 80 So. 449; 16 Ala. App. 445, 78 So. 643; 200 Ala. 615, 76 So. 973; 140 Ala. 602, 37 So. 509; Code 1907, § 4297. As fraud vitiates everything into which it enters, the existence of a written contract does not save a party, who is guilty of fraud in obtaining the execution of said contract, from the operation of the rule. 35 Cyc. 67; 143 N.Y. 424, 38 N.E. 458; 176 Ala. 242, 57 So. 757; 3 Stew. Port. 332.
Hamilton, Page Caffey, of Evergreen, for appellee.
In assumpsit, error cannot be predicated on the action of the court in sustaining demurrers to pleas setting up facts which would show that there had never been an indebtedness, for such facts can be given in evidence under the general issue. 198 Ala. 275, 73 So. 498; 9 Ala. App. 383, 63 So. 788; 3 Ala. App. 519, 57 So. 118. Where a purchaser gives a seller's agent a written order for goods, which order recites that there is no verbal agreement aside from the order, and that upon acceptance it becomes a contract that cannot be canceled or revoked by either party, except by agreement in writing, the purchaser is bound by the terms of the order, unless prevented from reading it by the fraud of the seller's agent. 145 Ala. 331, 40 So. 393; 167 Ala. 372, 52 So. 433; 196 Ala. 385, 72 So. 8.
The action is one of assumpsit for goods sold and delivered by the plaintiff to the defendant.
Under the general issue any proof therefore, showing that there was no sale of the goods by the plaintiff to the defendant is admissible. Shepherd v. Butcher Tool Hdw. Co., 198 Ala. 275, 73 So. 498; La. Lumber Co. v. Farrior, 9 Ala. App. 383, 63 So. 788; Shannon Co. v. McElroy, 3 Ala. App. 519, 57 So. 118.
If the defendant gave the plaintiff an order for goods to be shipped not less than six months after the order was given, and with a reservation of the right to cancel said order during this time, and did in fact cancel the same within the period, then a shipment of the goods by the plaintiff to the defendant would not amount to a sale, and the defendant could show such facts under a plea of non debitatus. Likewise, if the vendor's agent made such false representations as to the defendant's right to countermand the order within six months as would be binding upon the principal, and the defendant did in fact give a countermand within six months, there would be no obligation on the part of the defendant to pay for goods shipped in disregard of the withdrawal of the offer. Such facts would show that there was never an offer and acceptance, but at most only a conditional offer which was withdrawn.
The demurrers to pleas 2 and 4 were properly sustained.
Plea 3 sets out the same facts as pleas 2 and 4, but alleges that the plaintiff through his agent mistakenly represented to the defendant that he might have six months within which to countermand the order for the goods. Under the statute, section 4298 of the Code, a mistaken representation is just as much a legal fraud, if the other essentials are proven, as intended misrepresentation. So that under plea 3, to which demurrers were overruled, the defendant could have made practically the same defense as was denied him under pleas 2 and 4, and the real question in the case is the action of the court in overruling defendant's demurrers to plaintiff's replication to this plea.
The replication alleges that the goods were shipped under a written order signed by the defendant, which was sufficient to put the defendant on notice that the agent had no authority to make promises inconsistent with the written order, for the order expressly stated that it became a binding contract upon acceptance by the plaintiff company; that it embodied all the terms of the agreement, and that it was not subject to modification or cancellation by any agent of the plaintiff company, but only by a written agreement between the purchaser and the plaintiff company, acting through one of its officers, and alleges that there was no agreement among the parties allowing the defendant to cancel the order. In the case of Fulton v. Sword Medicine Co., 145 Ala. 331, 40 So. 393, the Supreme Court, where the facts were very much like those alleged here, says:
"The order signed by defendant, when accepted by the plaintiff, constituted a contract, which the parties had reduced to writing, and the defendant could not contradict the same by parol testimony. While it is true that, where goods are sold by an agent, the general rule is that, if the principal `seeks to avail himself of the benefits of the contract made by the agent, he is bound by the representations made by the agent' [citations], yet this does not contravene other recognized principles of law. `The doctrine of apparent authority can be invoked only by one who has been misled to his detriment by the apparent authority of the agent' [citations]. And when a traveling salesman sells goods to a customer and the customer signs a written order to the principal, stating distinctly, as in this case, that `none of the goods shall be returned for credit,' and that `there is no verbal agreement aside from this order' it shows notice to him that the agent has no authority to make any verbal agreements varying the terms of the written contract, and, if he agrees with the agent that the agent is to inform the principal that he is not to ship the goods unless he agrees to contradictory terms, the principal is not bound thereby, unless the agent informs him before the goods are shipped. The defendant signed the contract and must be presumed to have known its contents."
This case is affirmed in the later cases of Green Sons v. Lineville Drug Co., 167 Ala. 372, 52 So. 433, and Capital Security Co. v. Owen, 196 Ala. 385, 72 So. 8.
There are three well-settled propositions of law that would not hurt of restatement here, the first being, that parol evidence is not admissible to alter, change, or enlarge a written contract, and that previous agreements relating to the contract, when reduced to writing, become merged into the writing; second, that when a contract is executed in reliance upon false representation as to its contents, it is not binding upon the party deceived, if he elects to avoid it, and it matters not that he could read, and had an opportunity to read the contract before signing it, if he did not read it, and acted upon the representations of the other (Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 902; Commercial Co. v. Cooper Bros., 196 Ala. 285, 71 So. 684); and, third, that when the execution of the contract is procured by fraud or misrepresentation, it is competent to show the true contract (Adams Hdw. Co. Case, supra; Coopers' Case, supra; Tillis v. Austin, 117 Ala. 262, 22 So. 975; Dunham Lumber Co. v. Holt, 123 Ala. 336, 26 So. 663).
Defendant's plea 3 does not charge any fraud in the procuring of the defendant's signature to the order — no representation as to what the order contained is alleged, but merely charges that the agent mistakenly represented, in this respect, the legal equivalent of intentionally represented — to the defendant that defendant might rescind or countermand the order at any time within six months from the date of the order. If the defendant had been led to believe that he was signing an order, which contained a provision that he had the right to countermand the order any time within six months before shipment, and later found out no such provision was in the contract, or that directly the opposite was in effect in the order, then the execution of the instrument was induced by fraud and he would not be bound by it. Such being the case its contents were misrepresented, and being induced to sign an instrument he did not know he was signing, and which he did not really intend to sign, he may avoid the obligation incurred on account of such false representation. Butler County Oil Co. v. Campbell Son, 16 Ala. App. 445, 78 So. 643.
The demurrers to the replication were properly overruled.
The judgment of the circuit court is affirmed.
Affirmed.