Pictorial Review Company v. Rosen

Hart, J., (after'stating the facts)." The sole reliance of the plaintiff for a never sal of the judgment is’that the court erred in overruling-its demurrer to the answer of the defendants 'and in permitting the - defendants to introduce evidence to sustain the allegations of their answer.

In making this contention the plaintiff relies upon the general rule that a written contract cannot he contradicted or varied by evidence of an oral agreement between the parties before or at the timé of the execution of isiich contract. This- general rule has been often applied by this court, but exceptions to the general rule have also been recognized by the court.

According to the. allegations of the answer and the proof made by the defendants, the traveling representative of.. the-plaintiff was trusted to reduce, the contract for -the purchase of the goods to-writing, and-he was bound to do it truly. In such cases this court has recognized that, where the party who was trusted to write .the’contract omits some of its 'terms, or inserts provisions not agreed to by the parties, such.conduct constitutes Fraud and makes the contract void. Barton-Parker Mfg. Co., v. Taylor, 78 Ark. 586 , 94 S. W. 713 ; Main v. Oliver, 88 Ark. 383 , 114 S. W. 917 ; William Brooks Med. Co. v. Jeffries, 94 Ark. 575 , 127 S. W. 960 ; White Sewing Mach. Co. v. Atkinson & Son, 126 Ark. 204 , 190 S. W. 111 ; and J. I. Case Threshing Mach. Co. v. Southwestern Veneer Co., 135 Ark. 607 , 205 S. W. 978 .

According to the allegations of the answer, the agent of the plaintiff fraudulently wrote' the contract different from the one really madé, and, as soon as ‘the defendants found this out, they countermanded the order and notified the plaintiff not ’to ship the goods. Nevertheless1, 'the plaintiff shipped the'good's, and'the defendants, as they had a right to do, declined to receive and refused to pay for them.

The evidence of the defendants was not a contradiction of the writing, but showed what it should have contained as the real agreement between the parties. . If this were not so, the rule that fraud vitiates everything would become the exception instead of the rule itself.

It follows that the judgment of the circuit court was correct, and it will therefore be affirmed.