78 Ga. 739 | Ga. | 1887
Matthews brought his action against R. M. and J. W. Brooks upon two promissory notes, aggregating $165.00. These notes contained a mortgage on a certain mule, in which it was stated that the notes were given for the purchase price of the mule; it also contained a waiver of homestead, and this stipulation: “ The mule being bought by me as a weak-eyed mule and not warranted in any particular whatever.”
To these notes the defendant pleaded total failure of consideration; furthermore, that he had tendered the mule back to the plaintiff, who had refused to take him; he also alleged that when the notes were read over to him by the plaintiff, he left out the latter part, viz : “The mule being bought by me as a weak-eyed mule and not warranted in any particular whatever.” The defendant alleged that, on the contrary, the plaintiff had guaranteed the mule to be sound otherwise than his weak eyes. This plea and the amendment to it were demurred to by the plaintiff. The court sustained the demurrer and dismissed the plea; and this is one of the errors alleged here.
But it is insisted that the defendant was guilty of negligence; that he could have discovered this fraud before he signed the notes if he had read them; for he could read. To this the defendant may reply, “You have no right to take that position, for the reason that your own act induced me not to read the notes ; you threw me off my guard by having read the notes wrong, and it does not lie in your mouth to accuse me of negligence.” We think that is a complete reply as between these parties. If these notes had passed into the hands of an innocent bona fide holder, probably the position of the parties would have been different to what it is here. This is not a mere mistake where the party, if he had used due diligence, could have discovered the mistake; but it. is a case of actual fraud, perpetrated by one party on another, and is one of those cases provided for by our code, §§2634, 3176, 2966. We think that these sections control this case.
Judgment reversed.