Citation Numbers: 120 Me. 305
Judges: Cornish, Deasy, Dunn, Philbrook, Spear, Wilson
Filed Date: 6/1/1921
Status: Precedential
Modified Date: 1/12/2023
Appeal in equity by defendant. The bill was brought in November, 1919, to obtain the rescission and cancellation of a written contract entered into between the parties on October 9, 1916. The ground is fraud and misrepresentation on the part of the defendant, the plaintiff alleging that she unwittingly signed the agreement without foreseeing or comprehending its effect, and the further ground that the consideration was grossly inadequate and the agreement in itself so unconscionable that it should not be allowed to stand.
By the terms of the contract the plaintiff appointed the Gamage Brokerage Company her sole agent in the States of Maine, New Hampshire and Vermont to sell home made candies known as Dutch Dainties for a term of ten years and agreed to appoint no other agent in any of these States but reserved to herself the right to continue to sell these candies in Calais, Eastport and Woodland, Maine, without payment of any commission to the defendant. A commission of fifteen per cent was to be paid on all Dutbh Dainties sold by the defendant either directly or by mail order elsewhere in these three States, settlements to be made on or before the tenth of each month, the price at all times to be fixed and controlled by the plaintiff and the right to accept or reject any orders received through the defendant directly or indirectly to be reserved to her. The defendant on his part agreed not to handle or sell any other home made sweets in these three States.
The false representations set forth in the bill as the basis of rescission are as follows, quoting the language of the bill itself:
“That she entered into said agreement on the day following her twenty-first birthday, and that she was at that time wholly without experience in business matters; that said defendant represented that he had been a travelling salesman in the candy business for many .years,'and that he did a tremendous business in the States of Maine, New Hampshire and Vermont, and that he visited his customers in all said States once every ten days; that he gave the closest attention to his said business, and that he sold goods only to the best stores in each town, and that it would be greatly to the advantage of the plaintiff to enter into the agreement set out in said plaintiff’s exhibit
Applying what might be termed the uncontradicted testimony to these allegations, we find that so far as material they are proven to be true rather than false. Mr. Gamage had been a traveling salesman for many years, more than fifteen years in fact, when the contract was made; he had done a large business in Maine, New Hampshire and Vermont, his sales in 1916 aggregating approximately $100,000; he visited his customers frequently, though not as often as once in ten days, which apparently would be impossible; he gave close attention to his business, and won a competitive prize in 1916 for the amount of business done. He sold to the best customers in each town, parties of financial responsibility. The charge of false representations of material facts is absolutely without foundation.
That the plaintiff unwittingly signed the contract is equally unsupported. From her own testimony it appears that she had been carrying on the home made candy business in Calais since the Spring of 1914, selling from 300 to 400 pounds a month through her own efforts. She was desirous of extending her sales into other territory and of increasing her business. She met Mr. Gamage in response to a telephone call from him in the spring or summer of 1916, and they talked over the situation. He told her what agreement he was willing to make, and she said she would think it over. They then separated. She did think it over and apparently was satisfied with the plan because subsequently she went to her own attorney in Calais and employed him to draw up the contract which is in the case embodying the terms she had talked over with Gamage. Gamage had no part whatever in drafting the agreement. He was not even in Calais
Under these circumstances it is idle to claim that the plaintiff executed the contract unwittingly and without comprehending its effect. She was a young woman twenty-one years of age, of intelligence and of two years experience in this business. She was not hurried into the contract by a designing party but took her own time for consideration and had the instrument drafted in accordance with her views. It may be that it has not proven quite as remunerative as she expected, but that fact affords no reason for destroying the contract itself.
The case is barren of any facts showing fraudulent acts or statements on the part of the defendant that induced the plaintiff to make the contract, and considering the fact that she practically dictated its' terms she cannot now be permitted to effectively claim that she did not intend, foresee or comprehend its effect, and that she supposed the defendant would sell all her product outside of the three towns named. This contention under the circumstances carries little weight. Metcalf. v Metcalf, 85 Maine, 473; Eldridge v. Railroad Co., 88 Maine, 191.
“If there were no elements of fraud, concealment, misrepresentation, undue influence, violation of confidence reposed, or of other inequitable conduct in the transaction, the party who knew or had an opportunity to know the contents of an agreement or other instrument, cannot defeat its performance, or obtain its cancellation or reformation, because he mistook the legal meaning and effect of the whole or any of its provisions.” Pomeroy’s Eq. Juris., 3rd Ed., Section 843. Contracts ultimately unsatisfactory must not be confounded with contracts originally fraudulent and therefore voidable. Otherwise the maldng of a contract would be an idle ceremony.
Nor is there merit in the plaintiff’s claim that the consideration was grossly inadequate and the agreement unconscionable. Inadequacy of consideration if it exists, may bear strongly upon the question of fraud, but here it would seem that the defendant’s efforts have
Another fact must not be overlooked. This contract was made October 9, 1916. This bill was brought in November, 1919, and heard in February, 1920. More than three years elapsed between the making and the would-be breaking, and during all that time the defendant was securing customers and trade and the plaintiff was accepting the orders. Even up to the very day before the trial orders were sent in by him and accepted. What is a reasonable time for rescission when the facts are undisputed is a question of law. Hotchkiss v. Coal & Iron Co., 108 Maine, 34. Under the undisputed facts in the case at bar there can be no doubt that had there been ground for rescission it was not seasonably exercised. Neither law nor equity permits such playing of fast and loose with the rights of the adverse party.
In sustaining this appeal we do not overlook the force given to the finding by a single Justice in a cause in equity. But where there are few contradictions over material facts and the credibility of witnesses is not involved, the force of the finding is necessarily lessened. The plaintiff and defendant are the only material witnesses in this case and their recollection is not greatly at variance.
Appeal sustained.
Bill dismissed with costs.