Main v. Hall

BROADDUS, P. J. The plaintiff’s suit is for the value of certain merchandise alleged to have been sold to defendant on his written order. The answer is a general denial and a plea of non est factum. The judgment was for defendant from which plaintiff appealed. The defendant was a young man with three years’ experience as a merchant and doing business at Kearney, Missouri. The order in controversy is mostly.in print and quite lengthy, on the back of which is printed a list of a great many articles of merchandise and their prices. The testimony of defendant shows that on June 25, 1906, J. B. Weil plaintiff’s traveling salesman came to his store and sold to him different articles of merchandise of the value of $99.96; that the said Weil filled out' a written order similar in all respects to the one in suit containing,an order for such goods, the amount of which was stated on the back of said order; that he carefully examined the paper on both sides and knew its contents, and that it corresponded with the goods ' he had purchased; that just at that time he left Weil with the paper to go to another part of the store to wait upon a customer; that when he returned he again looked over the front page of the paper, saw that it was what he had previously examined, but did not examine it on the back, and that he signed it under the writing on the front side with the supposition that it was the original order. In a short time goods arrived of the value [717] according to the invoice, which was boxed np with the goods, of $215.59. The 'defendant immediately reshipped the goods to plaintiff. On the trial plaintiff objected to the evidence of defendant tending to show that the written order was obtained by fraud, which objection the court overruled. It is plaintiff’s contention that such evidence, fraud not being pleaded, was incompetent. It is a general rule that where fraud is relied on as a defense the answer must state the facts constituting the fraud. [Nichols v. Stevens, 123 Mo. 96; Paving Co. v. Field, 188 Mo. 182.] But notwithstanding such is the general rule it also held that under a plea of non est factum it may be shown that the “signature of defendant was procured through the secret and fraudulent substitution of it in the place of another which the defendant supposed he was signing.” [Kingman v. Shawley, 61 Mo. App. 54.] The decision is peculiarly applicable to this case, owing to its similarity. And so it was held in Broyles v. Absher, 107 Mo. App. 168; Wright v. McPike, 70 Mo. 175; Croby v. Weddle, 57 Mo. 452. The plaintiff also complains of the action of the court in failing to define negligence in an instruction given in behalf of defendant. Such a definition is held not to be necessary. [Sweeney v. Railway Co., 150 Mo. 385.] The plaintiff insists that the verdict should have been for him and not for defendant. But we believe that the finding of the jury is fully supported by the evidence and is for the right party. • Affirmed. All concur.