The appellants sued the appellee, in the Circuit Court for Dorchester County, in assumpsit on a written contract for the sale of certain patent medicines and flavoring extracts. The appellee, as defendant, filed the general issue pleas and also a special plea asserting that the plaintiffs had procured the contract through fraud. The verdict and judgment having been for the defendant, the plaintiffs appealed The record contains four exceptions to the Court's rulings on evidence and one to its action on the prayers.
The plaintiffs are manufacturing druggists in Iowa City, Iowa, and the defendant is engaged in the grocery business at Cambridge, Md., and is an illiterate person. *Page 590
The written contract in question is somewhat unusual in form. It consists of a sheet of paper headed "ADVERTISING THAT PAYS" on which appears a list, constituting an assortment of goods with their respective prices amounting in the aggregate $186, together with the details of a scheme by which the plaintiffs as vendors warrant the quality of the goods, undertake to do certain things to assist in their advertisement for the benefit of the vendee and guarantee him a fixed profit on the sale of them. In the body of this scheme it is stated that the authority of the salesman is limited to taking orders on the regular forms of the vendors and that the latter will not be bound by his representations or agreements unless they are endorsed upon the order.
On the back of this sheet appears an order for the goods addressed to the vendors, as follows: "Gentlemen — Please ship the goods herein described f.o.b. Iowa City, Iowa, on terms and conditions herein stated, all of which we have carefully read and find complete and satisfactory. We understand that agreement to be binding must be noted hereon." To this is appended the signature of the defendant as the vendee and also that of the salesman; as well as an acceptance signed by the vendors.
At the trial of the case below, the plaintiffs having offered evidence tending to prove the execution and delivery of the contract and the shipment of the goods in accordance therewith and the failure of the defendant to pay for them, the latter offered his own testimony as to his residence and occupation and his inability to read or to write beyond signing his own name. He further testified to the following facts. On March 17th, 1903, Joseph Wonn, the plaintiffs' salesman, came to his store in Cambridge and offered to sell him the goods described in the contract. No bargain was made at that visit, but Wonn returned to the store at about 8 o'clock in the evening of the same day and urged the defendant to buy the goods, saying that he would leave town in the morning. He at the same time assured the defendant that none of the same kind of goods had been sold to any other person in Cambridge, although *Page 591 he expected to sell one assortment of them to a dry goods merchant. He also said that he was not permitted to sell more than two assortments of them in any one town or community, one to a grocer and the other to a dry goods man.
The defendant also testified that when Wonn urged him to order an assortment of the goods he told Wonn of his inability to read or write beyond signing his name whereupon the latter read or pretended to read the contract to him, but did not read the portion of it relating to the extent of his own authority. That the defendant before signing the order for the goods objected to what might be the cost of the freight on the goods from Iowa City whereupon Wonn said that he guaranteed that the freight would not be over $1.50 or $2.00. That the defendant, upon the faith of the various statements and representations so made to him by Wonn, signed the order proffered to him by the latter for the goods.
When the goods arrived at Cambridge the freight on them amounted to $8.69 which the defendant refused to pay and the goods were not delivered to him. He at once caused his clerk to write for him to the plaintiffs informing them of the situation and refusing to take the goods unless they would act fairly with him. A day or two after that he discovered that Wonn had already sold similar assortments of the plaintiffs goods to two other grocers in Cambridge at the time when he induced him to sign the order for his assortment.
To the admission of all of this testimony and more of like tenor given by the defendant the plaintiffs objected by a single objection, but the Court overruled the objection and admitted the evidence and the plaintiffs took their first exception. There was no error on the part of the learned Judge below in overruling this objection for some portions of the testimony thus objected to in bulk were clearly admissible and when such is the case it is not error to overrule the objection. Morrison v.Whiteside, 17 Md. 458; Everett v. Neff, 28 Md. 184;Burgoon v. Bixler, 55 Md. 389.
The second exception was taken to the Court's refusal to *Page 592 grant a motion made by the plaintiffs to strike out this testimony of the defendant as a whole. This motion was properly refused for the same reason that the original objection to the admission of the testimony was overruled.
The third exception was to the admission of the whole of the testimony of the defendant's clerk Reid as well as to the overruling of a motion to exclude it from the jury after it had been admitted. This witness testified that he was present at the interview between the plaintiff's salesman Wonn and the defendant when the contract for the purchase of the goods was signed. He heard the defendant tell Wonn that he could not read and also heard Wonn read or pretend to read the contract to him. The witness corroborated in detail the defendant's account of the statements and assurances made to him by Wonn at the time of signing the contract. As certain portions of this witness' testimony were clearly admissible there was no error in overruling this exception.
The fourth exception was taken to the admission of the evidence of Milton C. Richardson and D.B. Hueston that they were grocers in business at Cambridge and that on March 17th, 1903, Wonn as salesman of the plaintiffs, had sold to them assortments of goods similar to the one sold to the defendant and that the sales to them were made before the sale to the defendant. We think this evidence was properly admitted under the pleadings in the case. The defendant was not at liberty to introduce parol evidence to vary the terms of his contract of purchase which was in writing, but he could show by such evidence that he was induced to sign the contract through fraud. Hurn v. Soper, 6 H. J. 276;Davis v. Hamblin, 51 Md. 540. And that could be done notwithstanding the fact that the evidence contradicted declarations of the defendant embodied in the written contract.Southern Advertising Co. v. Metropole Co., 91 Md. 61; Willis v. Kern, 21 La. Ann. 749. The testimony of these two witnesses tended to prove the falsity of the statements by which the plaintiff's salesman induced the defendant to make the contract which was the cause of action. *Page 593
The fact of the defendant's illiteracy did not relieve him from the obligation to inform himself of the contents of the contract by having it read to him by some one whose interests were not antagonistic to his own before he signed it, and he was estopped by his failure to do so from avoiding it on the ground that he was ignorant of its contents. Cyc., vol. 9, p. 390; Cooley onTorts, sec. 488; Spitze v. Balto. Ohio R.R. Co.,75 Md. 162. But that obligation on his part did not prevent him from showing that he was induced to sign it through positive fraud. The testimony of the two witnesses now under consideration did not relate to the contents of the contract of sale. It tended to show the falsity of the statement that none of the same kind of goods had been sold or would be sold to any other grocer in Cambridge where the defendant carried on his business. This was a material statement and the defendant testified that he had relied on it in making the purchase. The statement was made by the plaintiff's agent in the ordinary course of the employment in which he was engaged and within the apparent and presumable scope of his authority and was material to the transaction with the defendant. Such statements have been repeatedly held to bind the principal as part of the res gestae. A. E. Encycl., 2 ed., vol. 1, p. 1143; Hambleton v. Rhind, 94 Md. 491; SouthernAdv. Co. v. Metropole Co., supra.
Even if the plaintiffs were not bound as a matter of contract by these statements of their salesman made in the ordinary course of the employment in which he was engaged they would not be permitted to profit by his positive fraud in procuring the sale of their goods to the defendant by false statements as to the extent of sales made or to be made of the same kind of goods to other dealers in the latter's line of business in the same community. Mayer v. Dean, 115 N.Y. 556; Ferguson v.Rafferty, 128 Pa. 337, also reported with full notes supported by numerous authorities in 6 L.R.A. 33.
The fifth exception is to the action of the Court below in refusing the plaintiff's prayer as offered and in granting it as amended by the Court. The prayer as offered directed the *Page 594 jury to find for the plaintiff for the contract price of the goods and interest if they found from the evidence that the defendant had signed and delivered the contract to the plaintiffs and that they had shipped to him the goods therein specified and that he had not paid for them. To this prayer the Court added the following modification: "Unless the jury shall further find from the evidence that the defendant was induced to sign the contract or order offered in evidence by false representations of the plaintiffs."
In view of the fact that the defense of fraud in obtaining the contract sued on was set up in the pleadings and of the character of the evidence, to which allusion has been made by us, tending to support that defense it was the duty of the Court to submit the question of fraud to the jury. As the plaintiffs' prayer in the form in which they offered it entirely ignored this issue and the evidence offered in its support, it would have been improper for the Court to have granted the prayer without the modification.
Finding no error in the action of the Court below we will affirm the judgment appealed from.
Judgment affirmed with costs.
(Decided June 8th, 1904.