Hirschburg Optical Co. v. S. A. Jackson & Co.

Cooper, C. J., delivered the opinion of the court. The appellees were merchants in the town of Kosciusko, and were approached by the agent of the appellants, who desired to make sale of a lot of spectacles. The appellees stated that they were not experts in judging of such articles, and were unwilling to sell them to their customers unless they could be assured of their quality by the fact that they had been purchased from a reputable firm. To satisfy the appellees that the appellants were reputable merchants, the agent represented that the firm of McLain & Nabors, merchants in an adjacent town, had been for years customers of the appellants, and had recently given an order for the same character of goods, and exhibited to the appellees an order purporting to be one made by that firm. Relying upon this statement, the appellees entered into a written contract for the purchase of a quantity of spectacles, but learning in a few days that the representations made by the agent respecting the dealings of McLain & Nabors' with the appellants was totally false, they wrote to the appellants countermanding their order. After this letter had been dispatched, but before its reception by the appellants, the goods were shipped to the appellees, and were carried into their store a few days afterward by a person who was authorized to transport from the express office any goods which from time to time might be received directed to the appellees. As soon as the box was opened so that its contents were seen to be the goods shipped by the appellants, it was nailed up and returned to the express company consigned to the appellants. Whether it was received by them from the express company does not appear. The appellees, being sued for the price of the spectacles, defended the action upon the ground that they had been induced to make the purchase by the false and fraudulent representations of the agent. .The appellants seek to avoid the defense interposed, and insist that since the false statement does not appear in the written contract, no testimony can be introduced to establish the representations made by them, since the effect would be to vary the terms of the written contract; secondly, that the appellees, after they had knowledge of the falsity of the agent’s statements, [24] received the goods from the express company; and thirdly, that it does not appear that any damage was caused by the false statement. Manifestly the parol evidence was admissible. Its effect is not to vary or modify the contract, but to show that there was no contract by reason of the fraud which had been perpetrated. The contention that the goods were received by the appellees after notice of the fraud is not sustained by the evidence. The fact that the goods, without the knowledge of the appellants, were carried into their store and at once returned when it was known what they were, does not make a reception of them by the appellees under their contract of purchase. It is true that the fraud must have been one from which damage would arise to justify a rescission of the purchase by the appellees, but on the facts disclosed the jury was warranted in finding that injury would have resulted by the appellees having to take goods with which they were unacquainted and which they were unwilling to sell in the course of their business, unless supplied by a firm with whom those on whose judgment they were willing to rely had dealt. The representation made by the agent was made for the purpose of inducing the appellees to purchase the goods; it was false and fraudulent in its character, and was material by reason of the inexperience of the purchasers in dealing with such goods, and the injury -which would result from their having goods which they could not honestly offer to their customers according to their course of trade. Judgment affirmed.