American Harrow Co. v. Swoope

Opinion by W. D. Porter, J., The agreement upon which this action was brought was upon a printed form and very confusing in its terms. The various [454] covenants, while, perhaps, capable of being construed together, would seem to the average mind to be conflicting. Under the terms of the first section of the second article contained therein, the defendant agreed to purchase and pay for the goods in the contract enumerated. The third section of the same article required the defendant, “ to make the best endeavors to sell all goods possible in the territory hereinafter described, by exhibiting said goods, distributing printed matter, canvassing the territory.” The said goods referred to are those which are the subject-matter of this contract. Section 4 required the defendant “ to order of said first party such additional goods as second party shall be able to sell in territory named; all goods so ordered to be subject to all of the terms, conditions and agreements hereof, the same as though expressly described therein.” Section 6 of the same article bound the defendant to do no act, or sell at any price which should be injurious to the trade in said goods of said first party, or its other vendees, consignees or agents, and not to sell in any territory except that mentioned. The defendant was thus required to use the very goods which are the subject-matter of this contract for the purpose of exhibition, to the end that he might sell other goods; if he sold other goods he must procure those goods from the plaintiff and he must refrain from doing any act or selling at any price which might injure the trade in said goods of the party of the first part. The plaintiff, under this agreement, acquired the right to the services of the defendant in making sales of its goods, and reserved the right to dictate the price at which he should sell the goods which are the subject-matter of this contract. Article three of the contract limited the time in which the defendant might sell the goods to the season of 1898, and the territory in which he might sell them to the townships of Brady and Sandy, in the county of Clearfield. Article four provided that if the defendant should fail to promptly keep and perform any of said engagements, the plaintiff might retake the goods. The plaintiff was a manufacturer of agricultural implements, and its authorized agent called upon the defendant, a farmer who could not read the English language, and entered into this contract. The contract was printed in English and for any knowledge of its contents, the defendant was dependent upon the representations of the plaintiff’s agent. It was very nat [455] ural for the defendant to inquire as to the manner in which the goods in question were to be paid for. The inquiry was made and the defendant, at the trial, proposed to prove what representations were made by the plaintiff in answer to his question. The defendant made this formal offer: “ The defendant, Philip Swoope, being on the stand, it is proposed to prove by him that at the execution of the contract, before the same was signed, and as the inducement offered the defendant for signing the contract, that the defendant asked Howard, plaintiff’s agent, how the sales were to be made, and how he should sell them; that Howard said: ‘You sell the harrows and just take the paper in our names and we do the collecting; we don’t want you to do the collecting. They would say, old Philip Swoope is a pretty good fellow and he can wait a while; ’ that the defendant was to have a certain commission out of each sale and was not to pay for any of the harrows until he should sell each of them, when he was to remit the amount when it was Collected, less his commission, to the company; and that on the strength of this he signed the paper. This to be followed by evidence of the letters and papers and corroborative testimony of Samuel Barnickle as to what took place prior to the execution of this paper.” The purpose of the offer was stated to be to show that the agreement was executed upon the faith of this contemporaneous oral agreement, which was the inducement for the signing of the contract; and that the whole contract constituted an agency and not a sale. The learned court below sustained an objection to this offer, and upon this ruling all of the assignments of error are ultimately dependent. In order to vary the terms of a written instrument there must, it is true, be evidence of fraud, accident or mistake other than that which may be derived from the mere difference in the parol and written terms : Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 519. That other evidence of fraud may, however, be found in the circumstances under which the parties acted, or in the use which is subsequently sought to be made of the written instrument. The offer of the defendant, if sustained by evidence which conformed to the legal requirements in such cases, would have established that the defendant was induced to sign the contract by the statement or .contemporaneous oral agreement. When a party is thus inveigled into signing a written [456] contract upon the faith of a contemporaneous agreement, which is violated, as soon as it has accomplished its purpose in securing the execution of the paper, that oral agreement may always be shown when the enforcement of the paper is attempted. Mr. Justice Williams, who delivered the opinion of the court in Clinch Valley Coal & Iron Company v. Willing, 180 Pa. 165, said: “ It is a plain fraud to secure the execution of an instrument by representations as to the manner in which payments shall be made differing in important particulars from those contained in the paper, and after the paper has been signed attempt to compel literal compliance with its terms, regardless of the contemporaneous agreement, without -which it would never have been signed at all.” A written agreement may be modified, explained, reformed or altogether set aside by parol evidence of an oral promise or undertaking material to the subject-matter of the contract made by one of the parties at the time of the execution of the writing and which induced the other party to put his name to it. The law esteems it a fraud by such means to secure an unfair advantage and subsequently to deny the parol qualification, upon the faith of which the contract was made: Walker v. France, 112 Pa. 203; Cullmans v. Lindsay, 114 Pa. 170; Sidney School Furniture Company v. Warsaw School District, 130 Pa. 76; Ferguson v. Rafferty, 128 Pa. 337. If the uncontradicted evidence in this case was to be believed, the defendant could not read the contract, which was in English, and his ability to write was limited to the signing of his name. He was thus at the mercy of plaintiff’s agent, upon whose representations he was compelled to rely. If the agent misrepresented the contents of the contract, or by a contemporaneous oral agreement, varying its terms, induced the defendant to sign the agreement, it was competent for the defendant to show that fact by evidence such as the nature of the case demanded. The evidence might not have come up to the required standard, but that question cannot be determined until the defendant has had an opportunity to put in his case. The assignments of error are sustained. The judgment is reversed and a venire facias de novo awarded. Rice, P. J., dissents.