* Headnotes 1. Contracts, 13 C.J., sections 250, 991; Sales, 35 Cyc., pp. 68, 86; 2. Evidence, 22 C.J., section 1586; 3. Contracts, 13 C.J. section 303. The appellant, manufacturing company, sued the appellee, R.E. Sumrall, for three hundred and twenty-eight dollars, as evidenced by six promissory notes representing the purchase price of two musical instruments, designated "Golden Throated Claxtinolas," which are commonly called phonographs. After the contract and notes were signed and forwarded to the appellant, the instruments were shipped to and received by Sumrall, who acknowledged their receipt and kept them for sale for several weeks.
Mr. Sumrall wrote appellant that the instruments had "arrived in good shape and are O.K. You can start your advertising at once, and we will do some business I think." About a month after this time, Sumrall again wrote appellant saying that he had "put forth every effort I know how to sell those machines and have failed." *Page 512
Upon the refusal of Sumrall to pay the notes given for the instruments, this suit was filed, and upon the trial the jury rendered a verdict in his favor, from which this appeal is prosecuted.
At the trial the defendant, Sumrall, pleaded the general issue, and also set up fraud in securing the contract and notes. He claimed that he was misled by the agent of appellant in signing the contract and notes, in that he thought he was signing a contract of agency instead of that of purchase, and his testimony in the case was to that effect, and it was upon this theory of fraud that the case was submitted to the jury.
Sumrall was an experienced business man, but claimed he did not understand that he was signing the contract and notes for the purchase of the musical instruments. The instruments were shipped to him along with a copy of the contract and the notes, original invoice, and the bond called for in the original order. Sumrall received these documents, accepted the musical instruments, and attempted for a considerable time to sell them in his place of business, but failed to do so, and wrote appellant that he had made every effort to sell them.
The plaintiff below, appellant here, requested a peremptory instruction in its favor, on the ground that the testimony of appellee, Sumrall, together with the correspondence and other facts and circumstances in the case, showed conclusively that, in the first place, there was no fraud in obtaining the contract, and, second, that, if there was fraud in securing the contract and notes, then the fraudulent contract was ratified by Sumrall when he received the instruments with the copies of the contract, notes, bond, etc., and kept the instruments for many weeks in an effort to sell them, and writing to appellant that he had received the instruments and that they were O.K.
We are of the opinion the position taken by appellant is well grounded, and that the peremptory instruction asked should have been granted. We do not think the testimony is sufficient to sustain the claim of fraud in securing *Page 513 the contract and notes. An experienced business man, who discusses a transaction for several hours with an agent, and then deliberately sits down and signs the contract and notes, ought not to be heard to say that he did not understand so plain a transaction, and that an oral understanding had contemporaneously with the written contract, may be shown to contradict the written instrument.
But, even if the testimony herein was sufficient to raise a question of fraud for submission to the jury, then the appellee could not have such question submitted because he ratified the fraudulent contract by accepting the goods, and copies of notes, etc., advising appellant that they were all right, and endeavored to sell them to customers. He did not reject what he contends was a fraudulent contract, by refusing to take the instruments after seeing that he had signed the notes and contract of purchase; on the other hand, he accepted and kept them, and advised the seller that they were O.K., and "we will do some business I think." A fraudulent contract under such circumstances will become binding. It is only another instance of a person unwisely entering into a contract which proves unprofitable.
In view of these conclusions, the judgment of the lower court is reversed, and judgment entered here for appellant.
Reversed, and judgment here for appellant.
Reversed.