156 Mo. App. 446 | Mo. Ct. App. | 1911
Plaintiff is a loan agent now residing in Texas county, and defendant a farmer residing in Carter County. On January 2, 1909, defendant signed an application for -a loan upon his farm, addressed to Wells and Adams, Quincy, Illinois. By this application he applied for a loan of two thousand dollars to run for a period of seven years, and to secure the same agreed to execute deeds of trust upon his land and to furnish an abstract showing a clear title, to pay fees for recording deeds of trust, to pay all expenses incurred in perfecting the title, to pay a cash commission of one hundred and forty dollars, and to furnish insurance on the buildings located on the land in the sum of one thousand dollars, in a company acceptable to Wells and Adams, and appointed plaintiff, William F. Carroll, as his agent and attorney to secure the loan for him. The application for the loan was accepted, defendant furnished an abstract which appeared to show title satisfactory, deeds of trust were sent by Wells and Adams to plaintiff and were signed by defendant and his wife, and filed for record*
Error is assigned in the admission of testimony and in giving and refusing instructions.
The defendant was permitted to testify that at the time the application for the loan was made and signed he did not have his glasses and could not read the application without his glasses, and that plaintiff read it to him, and in reading it nothing was said about commission or other expenses. Plaintiff objected to this testimony on the ground that it was sought by it to vary the terms of the written contract. This objection was over
“The court instructs the jury that if you find l'rom the evidence that defendant did not himself read the contract and application for the loan, read in evidence, but relied on the plaintiff to read the same and if plaintiff did not correctly read to the defendant the said application and contract, but left out of the reading- the portion thereof providing for the payment of a commission of $140, and providing for the appointment of W. F. Carroll as his attorney to procure said loan; and if defendant signed the same believing that it had been correctly read to him and not knowing that it contained the said provisions then the contract was not binding on the defendant and you should find the issues for the defendant.”
The objection to the testimony and the objection to the instruction, in the main, raise the same question. The contention of appellant is that defendant having signed the application became absolutely bound by its terms, and could not in an action at law upon the contract defend upon the ground that the contract as written was not the contract made between the parties. The respondent contends that if defendant did not, and could not, read the contract, and for' that reason depended upon plaintiff to read it, and he did not read it correctly, but omitted to read the provision by which defendant was required to pay commission that it was not, in fact, the defendant’s contract, and plaintiff could not recover upon it.
We think the true rule to be that when a party is deceived in the execution of a contract and induced by the other party either by trick or willful fraud to sign a contract entirely different from the one actually made between the parties then such facts may be shown as a defense in an action at law upon it.
If the plaintiff misread the contract by omitting that part of it providing that defendant should pay a
The evidence tending to show defendant’s inability-to read the contract and' that he relied upon plaintiff to. read it and that plaintiff misread it was admissible, and under this evidence the instruction given was correct in so far as it relates to that question. There is another element in this case, however, which renders the instruction complained of erroneous. It tells the jury that if they find from the testimony that defendant depended upon the plaintiff to read the contract and he did not read it correctly but omitted portions with reference to the payment of commissions and the appointment of plaintiff as his attorney and agent then the contract was not binding and the issues should be found for the defendant. There Was another element in the case which this instruction overlooked, and which might have permitted a recovery by plaintiff upon one item even though the jury should find every fact described in the instruc
After the loan application was signed, and before the deeds of trust were executed by defendant, plaintiff sent a letter to defendant in which the commission and other items were specified. Defendant, after having received this letter, executed the deeds of trust without objection and upon this testimony the plaintiff asked, and the court refused, the following instruction:
“If you believe that the plaintiff did not read every word of the contract, but explained substantially the terms agreed upon, as to commission and expenses, or that the defendant was informed before he signed the deeds of trust, of what was to come out of the loan, as
This instruction vas properly refused for the reai son that it practically told the jury that the receipt of the letter by defendant bound him to pay these expenses and commission. This is not the law. The evidence was sufficient to submit to the jury the question whether a contract to pay commission and other items mentioned was made independent of the loan application which defendant had signed, but the instruction as ashed did not not submit that issue.
For the error noted the judgment will be reversed and the cause remanded.