Matthews v. J. B. Colt Co.

Pattison, J., delivered the opinion of the Court. The appeal in this ease is from two judgments recovered by J. B. Colt Company, the appellee, against Frederick S. Matthews and Frances Matthews, his wife, the. appellants. The suit in each ease was brought on six common counts and one special count. In the first of these cases, the special count is as follows: “That the defendants heretofore, to wit, on April 7th, 1921, by their contract in writing under seal undertook and did purchase from the plaintiff one carbide generator, Model ‘N’ fixtures, burners, globes, and supplies, and agreed to pay the plaintiff $302.50 therefor one year after date and agreed to give their promissory note for the amount thereof, and in the event of their failure to give said note, the full amount of the above mentioned contract price shall at once ⁶⁶⁹ become and be due and payable, and that tbe defendants have failed to give said note and have repudiated the said contract although said chattels have been shipped to them in conformity with said contract, thereupon said debt became due and demandable, and that the plaintiff demanded it of the defendants and they have refused to pay the same.” The special count in the other case differs from the first only in the articles bought, and the aggregate amount to be paid therefor.

The defendant, Frederick ¿3. Matthews, pleaded non assumpsit, while the defendant, Frances Matthews, in addition to the general issue pleas, pleaded that neither she nor any one acting for her signed the contracts. There was a joinder of issue on the general issue pleas, and a replication, (1) that the defendant, Frances Matthews, signed the contracts; (2) that she authorized another to sign them for and on her behalf; and (3) that she ratified and confirmed the signing of them for her by another person, and adopted the signature thereto as her own. The defendant, Frances Matthews, joined issue on the first and second replications and traversed the allegations of ratification and adoption, contained in the third replication, upon which the plaintiff joined issue.

The cases were then submitted to the court to be tried together by it, sitting as a jury. The court found for the plaintiff on both contracts, and assessed the damages at the contract prices, and upon each of said verdicts a judgment was thereafter entered. It is from these judgments that the appeal in this case is taken. There are but four exceptions found in the record.

Three of these relate to the evidence and one to the prayers. The first and second exceptions are to the admission in evidence of the two written contracts upon which the special counts of the' declarations, are based. As the contracts are practically the same, differing, only in the articles bought, and the aggregate amount to be paid therefor, we will here state the material parts of the first contract only, which is as f ollows: ⁶⁷⁰ “J. B. Colt Company (hereinafter referred to as the company), April 7, 1921, 30 East 42nd Street, New York. “Please ship the following generators and appliances f. o. b. factory or warehouse to Frederick S. Matthews, Stemmers Bun, Baltimore County, Maryland. (Here follows articles and prices.) “In consideration of the acceptance by the company of this order the undersigned (hereinafter known as the purchaser) agrees to pay to the company three hundred and two dollars and 50 cents within one year from date of acceptance of this order.

If said date of payment is subsequent to ninety days from date of acceptance of this order, the purchaser agrees to make, execute and deliver to the company forthwith upon notice of due acceptance, his or their promissory note in form prescribed by the company, for the amount aforesaid, and payable one year from date of acceptance of this order, no % “Warranty: It is agreed that in accepting this order the company warrants the apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters. “In the event of the failure or refusal of the purchaser to execute and deliver to the company the promissory note above referred to at the time above stated, the full amount of the above mentioned contract price shall at once become and be due and payable. “If the purchaser shall instruct the company not to ship the above described material, the company may at its option either hold the material for the purchaser, or deliver the material to a common carrier consigned to the purchaser, and either action on the part of the company shall be considered a full performance of the contract by the company. “This order shall become a contract between the purchaser and the company upon acceptance thereof in the space below by an officer or credit manager of said company at its office in New York, N. Y.; it being ⁶⁷¹ understood that this instrument, upon such acceptance, covers all of the agreement between the purchaser and the company, and that no agent or representative of the company has made any statements, representations or agreements, verbal or written, modifying or adding to the' terms and conditions herein set forth. It is further understood that upon the acceptance of this order, the contract so made cannot be cancelled, altered or modified by the purchaser or by any agent of the company, or in any manner except by agreement in writing between the purchaser and the company acting by one of its officers. “Payment shall be made only by check, draft or promissory note drawn to the order of the company. “The undersigned, herein called the purchaser, have each jointly and severally executed this order as principals and not as guarantors or sureties. “Frasee (Frances) Matthews. (Seal) “(Signature of wife) (Purchaser). “Frederick S. Matthews. .(Seal) “(Signature of husband) (Purchaser). “Accepted at New York, N. Y., 4/9/21. “J. B. Colt Company, “By C. O. Shepley, “Credit Manager.” Mercer Porter, a, resident of Baltimore County, who had accompanied Abrams, an employee of the plaintiff, to procure orders for the sale of its goods, to the home of the defendants on the occasion the contracts were said to have been executed, testified that the defendant, Frederick S. Matthews, after talking with Abrams about the purchase of the articles mentioned in the contract, which were to be used in the defendant’s home, he, before signing the paper, called to his wife, Frances Matthews, who was not at the time in the room with them, and asked her “if she was satisfied,” and she, speaking from an adjoining room, as he thought, said “if he was satisfied, go ahead.” He then said to her that “she would have to sign the paper” for the purchase of the articles; and she replied, “let the boy sign it.” The husband then ⁶⁷² signed it for himself, and Frederick S. Matthews, Jr., her son, signed it for his mother, by putting her name thereto'. Abrams, to whom we have already referred a® an employee of the plaintiff, when shown the contract, and when asked “whose signature is that,” said “Mr. Matthews.” He was then asked — 'his attention being directed to the other name appearing thereto — “Whose signature is that?” and he said, “the son’s signature, for the mother, Mrs. Matthews.” “Q. How came the son to write that name?

Ans. Three of us were in there, Mrs. Matthews evidently must have been in the next room. . I told Mr. Matthews I couldn’t take an order without both signatures. He called to Mrs. Matthews and said she had to sign it. 'She said, T can’t come out.’ She