Phoenix Duster & Manufacturing Co. v. Landau Grocery Co. ( 1909 )

GOODE, J.

Plaintiff is engaged in the manufacture of dusters of its own patent, of Manilla paper attached to handles either of wire or wood. The president of plaintiff, E. N. Fickett, called at defendant’s place of business to sell defendant, which is engaged in the wholesale grocery business in St. Louis, some of the dusters. He sold defendant one hundred .gross, seventy-five gross being shipped at once, but before the other twenty-five gross were shipped defendant countermanded the order on the ground the sale had been induced by false representations in these regards: First, that the dusters were a novel article and never had been sold before in St. Louis, and, second, “were good sellers.” Some correspondence ensued between the parties regarding the transaction, but having failed to settle the dispute amicably, plaintiff instituted*the present action in two counts, seeking in the first to recover $937.50, the purchase price of seventy-five gross of dusters actually shipped to defendant and received by it, and $250, the profit on the twenty-five gross which were not delivered. As instituted it was an action at law, but the answer filed by defendant was treated by both parties as converting the cause into one in the nature of a suit in equity. We will not say whether, in our opinion, the answer had this effect, being merely one to rescind the contract, but will treat the case as the parties did. The answer admitted the purchase of the dusters and set up the contract was induced by fraudulent representations as stated, asked the court to decree its rescission and tendered to plaintiff payment for some seven gross of dusters defendant had disposed of before it ascertained the alleged fraud in the sale. On the testimony the court entered judgment for plaintiff, finding against the defense of fraud. Defendant appealed and contends the judgment was against the weight of the evidence and, as the suit is in equity, this court ought to review the evidence and reverse it. The main point of fact at issue was whether Fickett represented the dusters with wood handles, as all purchased by defendant were, were a novelty and never had been sold in St. Louis, as he asserted, or whether he represented that neither those with wood handles nor those with wire handles had been sold in the St. Louis market. It is conceded dusters of this pattern with wood handles had not been sold before in St. Louis and that those with wire handles had for seven or eight years; and defendant contends, in substance, the latter species had proved so unsatisfactory that those with wood handles did not find a good market. Fickett testified the only representation he made regarding the novelty of the articles in St. Louis was that the dusters with wood handles never had been sold there. He testified further he distinctly told Landau, the purchasing agent of defendant, the wire-handled dusters had been “variously” sold in St. Louis. On the other hand the testimony for defendant tends to prove Fickett’s representation related to both dusters, and that when he made it he had both kinds in his hands, was striking them against a chair to show how they worked, and while he did this said the dusters were a novelty, meaning both of them, and never had been sold before in St. Louis. Defendant wished to obtain an exclusive market in St. Louis and bargained for this for four months. The contract between the parties, written on a blank form, with insertions and interlinings in pencil, is set forth:

“This contract made this 7th day of Oct., 1907, between Phoenix Duster & Manufacturing Co., of Atlanta, Ga., party of the first part, and Landau Grocery Co., of . . . party of the second part, witness:

“Said party of the first part has this day sold party of the second part 100 gross of their 5 1-2 oz. Phoenix Patent Dusters, at $12.50 per gross, F. O.. B. Atlanta, Ga. The said party of the first part agreeing to sell or retail but no other wholesale houses in said St. Louis for 4 months from this date, (sic.)

“Party of the second part agrees in view of the concessions made in this contract to push sale of said dusters, and should they fail to do so then said party of the first part is privileged to sell other firms.

“It is distinctly understood that there are no other conditions, verbal or otherwise, not named in this contract. No agent or other person is authorized to make any statements or agreements that will affect this contract unless they are embodied in it in writing. It is further understood that this contract is accepted by party of the first part contingent to strikes, fires or inability to get stock.

“75 Gro. once Bal. when order out.

“1 Gro. Grats.

“(Signed) Landau Grocery Co.,

Per L. Landau* Prest. Phoenix Duster & Manufacturing Co.”

If the number of witnesses must control the decision of the point, the finding of the court below as to the representation made by Fickett would be against the weight of the evidence, for two or three witnesses testified the facts were as contended by defendant, whereas Fickett’s testimony that his statement related only to the wood-handled dusters and he advised defendant the wire-handled dusters “had been previously sold in St. Louis ” was uncorroborated by any other witness. But it is to be remembered the witnesses who testified for defendant were its officials and employees, and we are not so convinced their narrative of the affair was correct as to overrule the court below, who had the advantage of seeing the manner of the witnesses on the stand. The discreeter policy in this cause is to defer to the judgment of the chancellor, as we find indications in the record that he weighed the testimony rightly. The impression we derive is that defendant became dissatisfied because it had overbought, as a panic came on in October, 1907, and money was scarce; the St. Louis banks refusing to cash checks. Defendant did not ask rescission of the contract when it first discovered it had been imposed on, as it now alleges, but in a letter dated October 30, 1907, one week after the contract was made, said, in effect, that had defendant known of the prior sales in St. Louis it would not have bought so many. This portion of the letter reads as follows: “Under the circumstances,'we cannot use this large quantity. We would not have bought this large quantity, but he insisted that we had the exclusive sale here and same was never introduced here before, and same would be sold in thirty days. Had he told us the truth, we would have taken five gross, and we are willing to accept that many and we hold the balance subject to your order. If this is satisfactory to you, we will remit for the five gross, and we will keep the balance here and you can dispose of them and forward them from here wherever you placed them, as we will not accept them since your representative had the audacity to come to our office and lie to us the way he did.” It was not until November 12th defendant declared the contract rescinded. On consideration of the whole evi> dence we will leave the decision as the court below rendered it.

The representation regarding the duster being a good seller was not proved to have been either false or fraudulent. Defendant sold six or seven gross of the dusters in a week, and at the same rate of sale would have disposed of about all it bought during the four months it was granted an exclusive market.

The judgment is affirmed.

All concur.