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Davis v. Magee

Decided: February 19, 1942.

J. STERLING DAVIS, PLAINTIFF-APPELLANT,
v.
WILLIAM MAGEE, ROBERT MAGEE AND CHARLES FISHMAN, DEFENDANTS-RESPONDENTS



On appeal from a judgment of the Ocean County Court of Common Pleas.

For the appellant, Davis & Davis (James Mercer Davis, of counsel).

For the respondents, David A. Veeder.

Before Brogan, Chief Justice, and Justices Case and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. The primary question raised by this appeal is whether the rule barring the adduction of parole evidence to vary the terms of a written contract was violated in the trial of the issue joined herein. We think not.

The basic inquiry was as to the contractual relationship subsisting between plaintiff and defendant William Magee. The document purporting the contract bears date January 1st, 1937. Thereby plaintiff agreed "to employ" this defendant "for a period of five years to manage the milk and dairy

products business at Seaside Heights and vicinity;" to "furnish all trucks, bottles and other equipment and pay all operating expenses other than salaries for the proper operation of said business;" and to "deliver all milk and dairy products required in the said business" during the summer months. And the defendant stipulated "to faithfully and diligently conduct" that business "for a period of five years;" to "purchase" from plaintiff "all milk and dairy products sold by him * * * at the minimum prices fixed by the Milk Control Board of New Jersey plus a charge of two cents per bottle on milk to pay delivery costs," and pay therefor "within seven days from the date of billing;" and to employ at his own expense all "drivers and helpers needed in the proper conduct of" the business. It is plaintiff's contention that the status of this defendant thereby arising was not that of an "employee," but a "sub-dealer" who had bound himself to purchase from plaintiff the merchandise needed for the transaction of his business.

But the defendant was permitted to testify, over objection, that in the latter part of December, 1936, he and the plaintiff entered into an oral agreement whereby he undertook to "drive a" (milk delivery) "truck" for plaintiff during the summer season for "a commission" of "two cents on each quart of milk" sold; that he immediately commenced work under this arrangement; and that he signed the writing adverted to on or about January 27th, 1937 (during the continuance of his employment), at plaintiff's solicitation and upon his representation that it obligated defendant "not to go with another milk company" after he had "built up a nice trade in Seaside Heights and Seaside Park." The defendant did not read the paper. He explained his act thus: "He [plaintiff] was going to employ me for five years and I thought it was all right, and I didn't know anything about the paper and I signed it. * * * Mr. Davis said the paper was to show I was to work for him for five years and after we had built up a good route in Seaside Park and Seaside Heights I would not go to work for any other milk company." Defendant was a painter by trade and a novice in the milk business. Plaintiff admitted that an oral agreement preexisted

the writing, but he insisted that the terms were identical. And the defendant testified that there was no change in the "method of operating" after the paper was signed. He was not given "different instructions" thereafter.

All this was evidence admissible to show fraud in the execution of the purported contract within the definition of the controlling adjudications. McDonald v. Central Railroad Co., 89 N.J.L. 251; Dunston Lithograph Co. v. Borgo, 84 Id. 623; Alexander v. Brogley, 63 Id. 307; Christie v. Lalor, 116 Id. 23. The asserted fraud was not in the inducement to the contract, but a misrepresentation of the contents of the writing. "A misrepresentation of the contents of a document by which one is induced to sign a paper thinking it is other than it really is, is the typical case of fraud in the execution; it is a case where the defrauded party may properly say, 'I never agreed to that, ...


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