J. B. Colt Co. v. Freeman

The opinion of the Court was delivered by

The appellant has failed to satisfy this Court that his Honor the Circuit Judge erroneously exercised his discretion, and likewise, for the reasons stated by him, the appeal is dismissed.

(dissenting) : Action upon an alleged written contract for the sale of a gaslighting outfit, to recover the price thereof-, the plaintiff alleging delivery in accordance with the contract and nonpayment by the defendant upon demand.

The plaintiff alleges, and the defendant admits, the execution of a written order for the outfit, its acceptance by the plaintiff, and the shipment of the goods. As a'defense, the defendant alleges in a most indefinite manner that the order *219 was obtained by fraud and that it failed to include certain importance and essential stipulations and conditions. No specification is made of the facts constituting the alleged fraud nor of the alleged omissions. The answer also sets up a counterclaim for damages and prays judgment for a reformation of the contract by inserting the omitted stipulations and conditions and upon the counterclaim.

No motion was made by the plaintiff to require the answer to be made more definite and certain.

Without objection from the plaintiff upon any other ground than that the oral testimony of the defendant tended to change the terms of the written contract, he 'was allowed to testify, in substance, that the trade beween him and the plaintiff’s agent was that he would pay a certain price for the outfit installed in his home; that relying upon the good faith of the agent he signed the order in blank; that, as soon as the agent got possession of the signed paper, he told him that the latter would have to 'pay, in addition to the price named, the cost of the installation, some $24 or $25; that the defendant immediately demanded a return of the paper and told the agent in effect that the order was canceled; that the agent refused to give him even a copy of the order, put it in his pocket, and sent it in to the company after]having filled in the blanks. Upon a motion by the plaintiff for a directed verdict, the Circuit Judge struck out all of the testimony of the defendant as above outlined, refused to reform the contract, and directed a verdict for the-full amound claimed'in favor of the plaintiff.

While the defendant’s answer is exceedingly imperfect, no objection thereto was made by the plaintiff. The charges of fraud and the grounds of reformation being in the most general terms, in the absence of any objection on the part of the plaintiff and of a motion to make the same more definite and certain, the matter must be considered as if the grounds testified to were specifically set up in the answer.

*220 I think in this situation there was enough evidence of fraud and of the right to a reformation to render the evidence admissible and, to require the Circuit Judge to pass upon the equitable defense of reformation.

In my opinion the judgment should be reversed, and the case remanded for a new trial, with leave to the defendant to make his answer more definite and certain as indicated herein, and to set up the defense of rescission of the contract.