Keough v. Leslie

Mr. Justice Trunkey

delivered the opinion of the court, January 19th 1880.

The first paragraph of this written contract appointed the defendants agents for one year from its date, in consideration of their purchase of three hundred dollars’ worth of paper patterns, fifteen per centum payable on delivery of the agreement, and the balance in four equal monthly payments, followed by detailed stipulations relative to the agency for sale of the plaintiff’s patterns. Among them was one binding Leslie “ to receive back from P. F. & M. C. Keough unsold patterns within one year from the delivery thereof, and to give in exchange therefor such other patterns as may be ordered at the time the old ones are returned.” Every sentence relates to the agency.

It is averred, in the affidavit of defence that when the plaintiff’s agent called on defendants to procure the contract, they requested till the next day to see about it. He replied, “ I must leave the city on the first train in the morning, and therefore cannot wait. There is no risk in this business, as you don’t have to pay only for what you sell, and the forty-five dollars is to protect us, so that you won’t throw the printed matter on our hands; and at the end of' the year, if the thing is not a success, we will take the patterns off your hands, and you will be at no loss.” The contract was then made “with said agent, expressly on the conditions above stated, and with the explicit understanding that we, the said defendants, were in no event to be liable for any goods or any amount, except for such portions of said consignments of paper patterns as were actually disposed of by us.” Taking the positive statements as true, it is manifest the defendants were induced to sign the writing on the express agreement that they should not be bound to pay for more patterns than they sold, and should suffer no loss beyond the hand payment of forty-five dollars. In general, when a party defends on the ground that he was induced to sign by an oral stipulation, unless he so avers in his affidavit, it is defective; but when the positive averments, considered with reference to the written contract, show beyond doubt that the oral agreement induced the signing of the written one, the affidavit is sufficient. The form and scope of the writing should be kept in view as well as the statements in the affidavit.

A party seeking to enforce a contract made by his agent is bound by his declarations made at the time, although he exceeded his authority: Caley v. Railroad Co., 30 P. F. Smith 363. If he would have the benefit of the bargain, he must adopt it as his agent made it.

The alleged matter of defence may be proved: Greenawalt v. Kohne et al., 4 Norris 369.

Judgment reversed, and procedendo awarded.