Good Roads Machinery Co. v. Ott

Stevens, J. I. Plaintiff, in its petition demands judgment against the defendant for $359.33, alleged to be due it as the purchase price of certain road machinery sold to defendant by contract in writing, dated October 5, 1914. Defendant admits that he signed the contract, but seeks to avoid liability thereon upon the ground that he was induced to do so by certain fraudulent representations and promises made to him by plaintiff’s agent. The evidence, without conflict, shows that another contract, by the terms of which defendant became plaintiff’s agent for the sale of certain road machinery for Mitchell County, Iowa, was entered into between the same parties on the same day, and as a part of the same general transaction; 'that plaintiff’s agent, on the occasion in question, visited defendant, and inquired whether he wanted to handle the Good Eoads machinery; that defendant answered in the negative; that the agent then said, in substance, that he would like to have him handle it on commission; that defendant would have to pay out no money; that he could pay for the machinery as sold; that the machinery could lie there; and that, if defendant quit handling it, he (the agent) would get somebody else to take it; that defendant would have no machinery left on hand to pay for; that defendant told the agent that, under those circumstances, he would sign the contracts; that both contracts were then presented and signed by him. The foregoing are, in substance, the representations relied upon. Defendant further stated that he would not have signed the contract but for the representations of plaintiff’s agent. [911] 1. Appeal and error : review : presumption : equity causes: disregarding incompetent evidence. [910] Counsel for plaintiff objected to substantially all of the evidence offered on behalf of defendant, upon the grounds that it was immaterial, irrelevant, and incompe [911] tent, and tended to vary, alter, and change the terms of the written contract. Ruling upon the objections was reserved by the court. The record ""fidis to disclose a final affirmative ruling- thereon; but it may be inferred from the court’s decision that some of the evidence to which objection was made was considered by the court in making up its decision. It will, however, 'be presumed that its finding and judgment were based only upon competent evidence. Hunt & Co. v. Higman, 70 Iowa 406; Spelman v. Gill, 75 Iowa 717; Foster v. Hinson, 76 Iowa 714; Wright v. Farmers Mut. L. S. Ins. Assn., 96 Iowa 360; Matthews v. Luers Drug Co., 110 Iowa 231; Finnegan v. City of Sioux City, 112 Iowa 232; Willis v. Weeks, 129 Iowa 525. 2. evidence : parol as affecting writing: fraud-induced contracts. Defendant testified that he believed the statements and representations of plaintiff’s agent, relied thereon, and was thereby induced to sign the contracts. A jury was waived. and the trial was had to the court, resulting, as stated, in the dismissal of plaintiff’s petition, and a judgment against it for jo o COStS. Authorities need not be cited to the point that parol evidence is not admissible to vary or alter the terms of a written contract; but -parol evidence is always admissible to prove fraud in the procurement thereof, and thereby to impeach the same. If, however, the parol evidence introduced fails to establish fraud, accident, or mistake, the eontracrt will be enforced. McCormick Harv. Mach. Co. v. Williams, 99 Iowa 601; Providence Jewelry Co. v. Fessler, 145 Iowa 74; Lavalleur v. Hahn, 152 Iowa 649; Pictorial Review Co. v. Fitz Gibbon & Son, 163 Iowa 644; Blumer v. Schmidt, 164 Iowa 682, 683; Houge v. St. Paul F. & M. Ins. Co., 174 Iowa 607. [912] structlon °¿í [911] As before stated, both contracts were signed at the same [912] time and as a part of the same general transaction, and both related to the purchase and sale of road machinery. The instrument upon which suit is based is, in form, an order for the Allowing goods: 1 National Rev. Grader, $175; 1 Little Winner, $110; and 6 Six-Way Drags at $11.50, $69; which defendant therein agrees to receive and pay the freight on from the factory, and to settle with plaintiff therefor by the payment of $351 at the Citizens National Bank, Des Moines, Iowa, on or 'before November, 1915. The order provided further that title to the machinery should remain in plaintiff until the purchase price was fully paid, and required defendant to forward to plaintiff immediately the amount received for machinery sold, whether in cash, notes, or warrants, and that the notes, checks, drafts, money orders, or other evidences of payment received should be drawn to the order of plaintiff. By the terms of the other contract, defendant agreed to become agent for the sale of plaintiff’s machinery, with the exclusive agency for Mitchell County, until November 1, 1915. This contract also provided that title to machinery ordered and delivered to defendant thereunder should remain in the seller until paid for, and contained a provision similar to that of the contract in suit for the immediate remittance to plaintiff of the list price of machinery as sold. Following the above transactions, the machinery specified in the contract was delivered to defendant, and a portion thereof was sold and immediately paid for out of the proceeds derived therefrom, defendant retaining the difference between the list price and the price received by him. The record also discloses that plaintiff frequently wrote defendant, tendering assistance in the sale of machinery, and, upon one or two occasions, advised him of prospective customers for the purchase of machinery. [913] 4. appeal and error: review: questions of fact, verdicts, ana findings: finding of trial court- [912] It is urged by counsel for appellant that the instrument [913] in suit is plain and unambiguous in its terms, and that defendant must have fully understood the meaning and effect thereof; but, when construed together with the agency contract, and in the light of the circumstances and undisputed evidence of the transaction on October 5th, the court may well have believed that defendant was misled and deceived by plaintiff’s agent, and induced to sign the contract by the representations made by him that defendant was only assuming the obligation of an agent. His future course of dealing with plaintiff was apparently entirely consistent with the claim he now makes, and affords some corroboration therefor. The finding of the court below upon all questions of fact will be given the weight and effect of the ® & verdict of a jury, and we are not required, therefore, to review or discuss the same in detail. II. But one other contention of counsel for appellant requires notice, and that is with reference to the following provision of the contract: 5. evidence: parol as affect-mg writing: fraudulent representations, “This order embodies the entire understanding, is not subject to countermand, and is not affected by any verbal agreements.” Evidence tending to show that defend- ° ant was induced to sign the contract by fraudulent representations by the plaintiff is not excluded by this provision thereof. Such was our holding in Bonewell & Co. v. Jacobson, 130 Iowa 170. As we find no ground in the record for a reversal, the judgment of the court below is — Affirmed. Ladd, C. J., Evans and Gatnor, JJ., concur.