Huber Manufacturing Co. v. Piersall

150 S.W. 341, 150 Ky. 307, 1912 Ky. LEXIS 880

• Court: Court of Appeals of Kentucky
• Decided: October 30, 1912
• Status: Published

Opinion

Opinion of the Court by

Judge Winn —

Affirming.

. On the afternoon of Sunday, July 1, 1906, J. M. Pier-sail, as the agent for his wife, Nina Piers all, the appellee, bought of the general agent of the Huber Manufacturing Company, at Lexington, Kentucky, an eighteen horse power traction thresher engine. He took it that night to the farm of one Tanner, in Payette County, where he endeavored to thresh with it on Monday. Finding it unsatisfactory, he returned it to the Huber Manufacturing Company agency on Tuesday morning. When he bought the engine he had with him a blank check signed by his wife. This was filled out for $650 and given to the agent. On Monday morning, Mrs. Pier-sail came to town and executed her note for $645. This action was brought to recover the $650 cash payment and to cancel the $645 note. Pending the litigation the Huber Manufacturing Company presented this note at the bank where it was made payable; whereupon it was paid and charged to Mrs. Piersall’s account. She then amended her petition, asking the recovery of this sum also. 'The trial court gave her the relief desired, -and the Huber Manufacturing Company appeals here.

The facts are in sharp conflict. The plaintiff’s case is as follows: J. M. Piersall says that he bought for his wife the engine, on the Sunday afternoon; that nothing whatever was said about any written order or contract, and that none was prepared; that it was agreed that the engine would do good work, and that if it did not the engine should not be the property of the purchaser; that it was agreed that his wife was to execute her note for the deferred payment and a mortgage on the engine to secure this note; that he was to bring his wife in at some early and convenient day to execute these papers; that with experienced engineers he took the engine to the Tanner place, made every effort to use it, and that it would not do the work required of it; that about ten o ’clock on Monday morning he sent Chelsea Piersall, his brother, to telephone to "Walker of the conditions. Chelsea Piersall testifies that he telephoned about ten in the morning; that he recognized Walker’s voice; and that Walker said he would be down in a few minutes. Mrs. Piersall testifies that .early on Monday morning she received a telephone message from the agent, Walker, asking her to come in to his office and execute the papers; that when she arrived there the papers were not prepared and she waited for their preparation; that while waiting, Walker was called to the telephone, when she heard him say that he would be down there in a few minutes — the same answer that Chelsea Piersall testifies he •received from Walker at about that hour; that after this telephone conversation Walker read over to her a written contract order, and that she executed it, the note and the mortgage; that meantime she had not seen her husband or had any communication with or from him. Mr. Tanner, the farmer, and sundry of the engineers and laborers employed by Piersall, who were along with the engine, testify that it was wholly defective and would not at all do the work. It was returned on Tuesday morning and by agreement was stored in the Huber warerooms without prejudice to the rights of either party. Piersall’s testimony that nothing was said about a written contract is supported by some of these men who were present when the trade was made on Sunday afternoon.

On the defendant’s side Walker testifies that he told Piersall that there would have to be an order given for the engine; that he, Walker, secured an order blank, filled it up and pushed it over toward Piersall, asking him to sign it; that Piersall said no, that his wife would have to do that; that he asked Piersall whether his wife would come in the next morning and sign the papers, or whether a man should be sent out to her house with them; that Piersall said that there'was a telephone in her house and that Walker could call her up; that he, Walker called her up by phone, told her of the sale and asked her whether he should deliver the engine and she replied in the affirmative; that he told her that the papers, order, note and mortgage would have to be signed, and asked her whether she would come in the next morning or whether he should send a man out; that she responded that she would be in the next morning; that he left the printed order filled in lying on the table; that the next morning Mrs. Piersall came in, and that when the witness went into the office he found her looking over the printed order contract; that he had the mortgage and note prepared, whereupon Mrs. Piersall executed the written order, the note and the mortgage; that he received no telephone complaint at all during the morning. In rebuttal he testifies that Mr. Piersall asked him at the time of the trade whether the engine was guaranteed or warranted; that he, the witness,' responded that it had the Huber Company’s regular warranty, and that if the engine did not do what it was guaranteed to do, they would refund his money and his note. Other witnesses support 'Walker’s statement that a yellow contract form was lying on the table between the parties on Sunday afternoon. For the de-t fendant it further appears that later in that week a thorough test was given to the engine on the farm of one Clark, and that it did satisfactory work; that Mr. Piersall was. requested to attend the test, and declined; that he was requested to permit the engine to be tried out attached to his thresher, and declined; that the engine was in the same condition when it was tried out on the Clark place as it was when tried out by Piersall on the Tanner place.

In rebuttal plaintiff introduced J. M. Piersall, a Mr. Beck, a Mr. Couchman, Mr. Chelsea Piersall, a Mr. Lay-ton and a Mr. Creed, all of whom testified that about ten o ’clock at night on the nights of July 4th and 5th some of them mentioning the one date, some the other, and some both, they had seen the Huber warerooms lighted up and three men at work about this engine. These nights intervened between Piersall’s use of the engine and the use of it on the Clark place.

It satisfactorily appears from the testimony of plaintiff’s workingmen witnesses and of other disinterested witnesses that for some reason the engine would not work at the Tanner place; and that by using the utmost efforts they only succeeded in threshing in an entire day not exceeding 200 bushels of grain, while an average day’s threshing was 1,000'’to 1,500 bushels; that Piersall was an experienced thresher-man; that his engineers were experienced; and that not only did the engine not thresh, but that enough steam could not be kept up in it to propel it properly along the highway, pulling nothing save its own weight. The defendant’s testimony establishes that it did good work on Saturday. But the testimony, if true, of the night work on the engine by the Huber Company’s experts may explain the difference between the character óf its work on the two days.

In the written order or contract signed by Mrs. Piersall it was agreed that if the engine ’did not, within six days from its first use, do the work for which it was sold, the purchaser should immediately give written notice to its home office in Marion, Ohio, by registered letter, and written notice also to the local agent through whom the purchase was made, stating particularly wherein the engine failed to do its work; and further, that a reasonable time should be allowed the company to get to the engine with skilled workmen, remedy the defects, etc. It is admitted that no such notice or notices were given; If this written contract was the contract between the parties, it is evident that the plaintiff must fail; for .such a provision as to notice and opportunity to examine and repair has been upheld by this court in the case of J. I. Case Threshing Machine Co. v. Mattingly, 142 Ky., 583; Nichols & Shephard Co. v. Caldwell, 26 K. L. R., 136; and other cases. Nor if the written contract be the contract, can Mrs. Piersall rely upon her supposed lack of knowledge of its contents. One who signs a written contract without reading it takes the risk. J. I. Case Threshing Machine Co. v. Mattingly, supra. Nor if the verbal contract made on Sunday by her husband as her agent was merged into the written contract signed by her on Monday morning, can she recover. '

First, it is proper to express our conclusion that the testimony for plaintiff shows that on Monday the engine did not perform its work; and that it was so far short of performance as to justify its return to the company if the contract permitted its return. About this there is not much of difficulty, notwithstanding the marked conflict in the testimony in .behalf of the litigants. Mr. Walker says that at the time of the sale he told Piersall, the agent, that there would need to be a written order. He did not tell him that there would need to he a writtep) contract setting up entirely distinct and different terms from the oral contract of sale; at least he does not testify that he so told him. While he says he then prepared a writing and requested Piersall to sign it, he does not say that Piersall ever had the writing in his hands or ever had its contents explained to him. He does say that he told Piersall that the engine was sold with the regular Huber guarantee, and that if it did not do the work that company would refund the money and the note. This statement by him did not at all imply that there was a written contract to be entered into. Had the written contract been shown to Piersall it is entirely possible that he would not have acceded to its terms. When Pier-sail left with the engine, therefore, he left with no understanding o,f any contract rights on either side other than those which he had made for his wife in the oral trade. According to his version of that trade, the engine was not to be his unless it would perform the work. According to Walker’s version, if it did not do the work the Huber company would return the money and the note. Upon this understanding and none other insofar as the record discloses, Piersall took the engine away as the buying agent for his wife. When Mrs. Piersall came in on Monday morning she was presented with a written contract with the request that she should sign it. It was not the contract which her husband had made for her; and though she read it over and understood its contents fully, she was entitled to the contract which her husband had made for her, and not to another substituted by the agent of the manufacturing' company. To illustrate: Piad her husband bought this engine at $1,000, and the Huber Company obtained her signature to the contract for $1,295, without disclosing the true contract to her, it could not have recovered exceeding the $1,000. In taking the written contract from her imposing upon her much harder contract rights than those her husband had gained for her, without any explanation to her by her husband or by the Huber Company of what her real contract was, she was so far overreached as to make that contract not her contract. The appellant, of course, is right in its position that where an agreement is made and afterward reduced to writing, the written memorial of the contract must be taken, in the absence of fraud or mistake, as the entire contract. But the error of that position here lies in the fact that the oral contract made was not merged into the written contract, hut an entirely different contract was substituted to which Mrs. Pier-sail’s signature was procured without her understanding what her real contract rights were.

The judgment of the trial court is in conformity with these views and is, therefore, affirmed.