67 So. 258 | Ala. | 1914
This is an action upon the common counts and, in some of its aspects, is simila-p to the cases of Southern Loan & Trust Co. v. Gissendaner, 4 Ala. App. 523, 58 South. 737, and Capital Securities Co. v. Holland, 6 Ala. App. 197, 60 South. 495,
1. In this case there is one material element lacking Avhich was pointed out in the Gissendaner Case, supra. In the Gissendaner Case the agent of the defendant had been, in childhood, a playmate and schoolmate of Mrs. Gissendaner. They had been friends all of their lives and called each other by Christian name. This agent— there is some evidence tending to show — took advantage of the intimate personal relations which thus existed between him and Mrs. Gissendaner so as to lead her into the belief that he wanted to aid her in buying a home, and under that fraudulent assumption, induced her to sign an application, telling her that it was unnecessary for her to read the application, “that all she had to do was to trust him, and that if she would do so he would see that the loan was made to her by October first.” The agent in that case, there was evidence tending to show, took advantage of a relation which years of friendship and intimate association had established between him and Mrs. Gissendaner, to lead her, on behalf of his company, without reading the application, into a contract with his company, by making with her, on behalf of his company, for a fraudulent purpose, a contract which, when it was made, there was no intention to fulfill, and but for which fraudulent agreement Mrs. Gissendaner would not have made the contract.
Under all the evidence in this case, it was the duty of. the plaintiff,, in the exercise of business precaution, to have read her application. She was dealing with an agent who was authorized to take applications for contracts — -not to sell contacts — and just above the plaintiff’s signature to the application -in this record there is this significant provision:
“I make this application expressly and solely upon the terms and conditions of said contract and the option, provisions and requirement set forth on the back and made a part hereof, and not upon the faith of any statement, promise, undertaking or guaranty on the part of said solicitor or any other person.” .
Under the evidence in this case there is no legally sufficient reason shown by the plaintiff for her failure to read her application, and we see no reason why, under the evidence in this case, she should be permitted, upon the ground of fraud, to defeat the defendant’s re
■Under the evidence in this t case, defendant was entitled to affirmative instructions in its favor. — Dunham Lumber Co. v. Holt, 123 Ala. 336, 26 South. 663. Under the law, as applied to the evidence in this case, the plaintiff is charged with knowledge of the contents of her application, and the application shows that the defendant was not bound by any statement or representation of its solicitor.
Reversed and remanded.