Alfred Shrimpton & Sons Ltd. v. Eschwege

Van Brunt, P. J.: This action was brought to recover for goods, wares and merchandise consisting of one great gross papers of pins with advertisements attached. The defendant for answer denied the sale and delivery of the goods, and alleged that the order for one great gross papers of pins was obtained by the agent of the plaintiffs through fraud or fraudulent concealment and misrepresentation. The question involved in the trial of the case was as to whether the defendant had ordered one gross papers of pins or one great gross papers of pins. It appears that an order for one great gross papers of pins was signed by the defendant and given to the agent of the plain [57] tiff on or about the 14th of February, 1893; that he turned in the order to the plaintiff, who upon the seventeenth of February mailed to the defendant a letter in which they acknowledged the receipt of his order given to their salesman for one great gross papers of pins to be put up in the manner described in said letter as soon as they could prepare the goods, with the defendant’s name and special advertising matter printed thereon ; and then follows the printed matter which was to go on the papers in which the pins were to be put up. The letter concludes : “ Please check this all over carefully, making any changes or corrections you desire, and if O. K. please sign and return to us by first mail in the enclosed stamped envelope, and we will proceed with the order.” At the bottom of this letter the defendant signed the following statement: “We have checked this all over carefully, and find it to be correct in every particular. Date Feb. 20, 1893.” This was mailed to the plaintiff, who thereupon proceeded to complete the goods necessary for the order, and shipped the same, after they had been prepared for delivery, to the defendant, who refused to receive the same. The evidence upon the part of the agent of the plaintiff was that there was a conversation between himself and the defendant as to whether one gross of pins or one great gross should be ordered. The defendant objected at first to one great gross, but when he was told that the plaintiff would not print his advertising matter upon a smaller order he finally consented, and gave the order for one great gross. The defendant insisted that the conversation was as to one gross or half a gross — that he only wanted to order half a gross — and that upon being told that the plaintiff would not fill an order except for a gross, he presumed he was signing an order for a gross. A saleswoman of the defendant of the name of Mattie Goose corroborated him to a slight extent; she did not hear the whole of the conversation, but testified that there was a conversation between the defendant and the plaintiff’s salesman as to one gross or a half a gross. She did not see the order signed or witness the circumstances under which it was done. Upon the conclusion of the evidence the court directed a verdict for the plaintiff, and in this, I think, there was no error. It appeal’s from the evidence that, after receipt of the order by the plaintiff, [58] they sent to the defendant a statement of what the order was before they proceeded to complete the manufacture of the goods, which goods were to be put up in a special way in which they could be used by no person except the defendant. The defendant replied that the order was correct in every particular, and the plaintiff thereupon went on and manufactured the goods. It seems to. me that it is too late now for the defendant to say that he did not read the order. Before he approved of it and stated it to be correct in every particular he was bound to read it; and if he did not the plaintiff cannot be called upon to sustain the loss occasioned by his negligence. Where the defendant represents that he has seen, and the party acts upon the faith of his having seen, he cannot be heard after-wards to say, “ although I said I saw I did not.” It would certainly put a stop to all business transactions if, after the delivery of the ratification over a purchaser’s own signature of an order to which his attention is especially directed, a seller could not rely upon the representations of the purchaser that the order was correct in every particular. The judgment should be affirmed, with costs. Ingraham, J., concurred; Williams, J., concurred in result; O’Brien and Patterson, JJ., dissented.