Burroughs v. Pacific Guano Co.

81 Ala. 255 | Ala. | 1886

SOMERVILLE, J.

— Where a person signs an instrument without reading it, or if he can not read, without asking to have it read to him, the legal effect of the signature can not be avoided by showing his ignorance of its contents, in the absence of some fraud, deceit, or misrepresentation having been practised upon him. But the rule is otherwise, and the instrument will be held void, where its execution is obtained by a misrepresentation of its contents — the party signing a paper which he did not know he was signing, and did not really intend to sign. It is immaterial, in the latter aspect of the case, that the party signing had an opportunity to read the paper, for he may have been prevented from doing so by the very fact that he trusted to the truth of the representation made by the other party with whom he was dealing. Goetter v. Pickett, 61 Ala. 387 ; Dawson v. Burrus, 73 Ala. 111; Foster v. Johnson, 70 Ala. 251; Davis v. Snider, Ib. 317; Johnson v. Cook, 73 Ala. 537. What the rule would be in a case where the instrument sued on is commercial paper — the plaintiff being a bona fide holder for value before maturity— and the defendant has been guilty of negligence in signing it before delivery, we do not now decide. — Abbott v. Rose, 16 Amer. Rep. 427; Chapman v. Rose, 15 Amer. Rep. 401, and cases cited; Gibbs v. Linabury, 7 lb. 675; First Nat’l Bank v. Johns, 46 Amer. Rep. 506, 519. The first charge given by the court was opposed to this principle, and was erroneous.

2. The rule is further settled that where the buyer of an article relies on a representation - fraudulently made by the vendor, he is not barred of his right to relief by the mere fact that he had the opportunity of discovering that the representation was false, and might have known the truth by proper examination and inquiry. Non constat that he may not have been prevented from making investigation by his reliance on the truth of the representation, and this representation may not have been an artifice practised for the purpose of lulling all inquiry. — 1 Benj. on Sales (Corbin’s Am. Ed.), p. 575, § 676, and note 31; Buker v. Lever, 67 N. Y. 304; Jackson v. Collins, 39 Mich. 557; Kendall v. Wilson, 41 Vt. 567; 1 Addison Contr. (Morgan’s Am. Ed.), pp. 116-7, § 306. It is usually in the case only of a mere concealment of defects in the thing sold, without misrepresentation, that a failure of the vendee to use proper precaution to discover such defects, they being open to observation by the exercise of ordinary care, renders him remediless by reason of the folly of his own neglect, unless a special trust or confidence is for some reason reposed in the vendor, when a different rule might apply. — Story on Sales, §§ 382, 172.

The second charge given by the court was repugnant to this view of the law.

3. The plaintiff’s first replication to the fourth plea, and his first replication to the seventh plea, which were in substance the same, were bad, and the defendant’s demurrers to these replications should have been sustained. If the instrument sued on was void for fraud in its execution, as alleged in these pleas, it was of no more binding efficacy on the defendant than if it had no existence, or were a piece of waste paper. Its recitals, therefore, could not operate as an estoppel on the defendant for any purpose whatever.

Beversed and remanded.