I dissent from the foregoing opinion, and am of the opinion that there is sufficient evidence to sustain the verdict. Plaintiff purchased from defendant a threshing machine and engine. His testimony is that the contract was oral, and included a warranty and a right to return the machine if it failed to do good work; and, after notice, the defendant failed to make it do good work. He mortgaged other personal property as security for the purchase price. He and the defendant both failed to make the machine do good work, and he returned it. The defendant then took possession of the mortgaged property under the mortgage, and plaintiff brought replevin.
Upon the trial defendant produced a written order for the machine, following which, on the same paper, and printed in small type, is a contract of purchase of the machine, reciting the warranty the purchaser received with it, which is wholly different from the oral warranty which he claims, and contains no clause giving him the right, after trial, to return the machine.
In impeachment of this instrument, plaintiff testified that in the office of the agent, late one evening, the clerk of the agent filled out a paper; that it was quite dark; there was no light in the room, and he could not see to read when the paper was given him. That he took up the paper to read it, and the clerk told him it was nothing but an order for the machine. Again, he says: “He seemed to be in a hurry, and he spoke; he said it was about time to go home, and he says, ‘It is nothing but an order for the machine.’ ” “I had it only while it was lying on the desk. I picked it up in my hand, and he told me what it was, and I just put it down and signed it. I could hardly see to write in there. Q. Why didn’t you read it? A. Because it was quite late in the evening, and Ramage said what it was.”
The witness also testified that some time after he signed this order, and when the machine arrived, in a conversation with the agent “I asked him for a warranty, and they told me they would send me one; when they sent-these papers to Fulda, they would send one with it in the letter.” “I asked him for a warranty, and he said that they had no printed one, but would send me one in .e letter, and the warranty was to be the same as he had stated *211before; it should do good work in all kinds of grain, or I could rectum it.”
It seems to me the evidence was sufficient to go to the jury to-impeach the written instrument for fraud. When the parties standi on an equal footing, and the party claiming fraud is able to read, and no artifice is used to prevent him from reading the instrument he* is about to sign, his own negligence in failing to read it is the substantial cause of his injury. But each case must stand on its own-peculiar circumstances where there are such circumstances in the case. Where some artifice is fraudulently used to prevent his reading the instrument, and there is also a difficulty in the way of hi» reading it, as that it is too dark to see to read it at the time and. place, and the objectionable matter is in fine print, and, as in this; case, where he alone was to sign the instrument, and this objectionable matter was a provision which he might naturally expect, should be signed by the opposite party, and not by him, it seems; to me that his negligence and defendant’s fraud were both questions for the jury.
Fraud must be proved by circumstantial evidence. The fraudulent intent is usually a mere inference. It is a question for the jury whether the clerk, Bamage, said what he did when plaintiff picked up the instrument to read it, for the fraudulent purpose of preventing him from reading it, and whether Bamage took advantage of the darkness and the fine print to aid him in accomplishing his purpose, and also took advantage of the fact that plaintiff might naturally suppose that the warranty from the defendant to. him should be signed by the defendant, and not by him. While the-evidence is certainly not very strong' as a question of law, it insufficient to sustain the verdict. In my opinion, the order appealed, from should be affirmed.
(Opinion published 58 N. W. 865.)