190 Iowa 256 | Iowa | 1920
Lead Opinion
“She didn’t understand it; she didn’t know what I meant by it.”
Defendant told him, at that time, that the $628 was in full, and that she wanted a copy of the original contract, — that is, the proposals and acceptance. But instead of giving her a copy of the proposals and acceptance, plaintiff turned the matter over to an attorney for collection. Such is defendant’s claim. The manner of presenting these three bills separately for extras was thought by the trial court to be unusual, and he denominated it an afterthought. It appears to us that it was at least unusual to present them as defendant contends, or even as claimed by plaintiff. One bill is dated December 27th, and another, December 30th. They all relate to the same subject-matter, and could as well have been put in one bill, it seems to us. . The contract as plaintiff claims it to be is as follows:
• “An agreement entered into this 3d day of August, 1917, by and between.Mrs. E. R. Harris, party of the first part, and Walter Christensen, party of the second part, witnesseth: Party of second part for and in consideration of $628, six hundred and twenty-eight dollars, in payment as herein specified agrees to furnish all material and labor necessary to install a city heat system in the store now occupied by the Horse Shoe Gro. Co.
“It is understood that the following material and labor will be furnished by the party of second part.
“Each radiator to be furnished with 2 1%" N. P. Steam Radiator Valve, and one loose key air valve. -All radiators to be silver bronzed. Run iy2 .circuit with 1 y¿' chokers between each radiator in basement. Install y2 valves so as to drain system.
“Pipe fittings and etc. to install a complete job to be furnished by party of second part.
“Party of first part to bring feed and return inside basement of own building.
“It is further agreed that if any changes OA'e made from above contract that the party of first part will reimburse party of second part on the basis of time and material.
“In consideration of the foregoing the party of first part agrees to pay the party of second part the sum of $628 when said job is completed.
“In witness of the foregoing, the party of aforesaid set their hand and seal to this and the other instrument of like tenor and date this 3d day of August, 1917.
“[Signed] [Signed]
“E. R. Harris, Walter Christensen,
“Party of First Part. Party of Second Part.”
It will be observed that this contract provides that for $628 plaintiff agrees to furnish all material and labor necessary to install a city heating system, etc., and that pipe, fittings, etc., to install a complete job, are to be furnished by party of the second part. While the paper bears date of August 3d, which is the same date as the typewritten proposals, it was not signed for some time afterwards. The original of this typewritten contract has been certified, and in it appear one or two changes, made with pen and ink. The defendant concedes that there were two changes made in the proposals: one of which is that there-were to be furnished 2 1 y¿' N. P. steam radiator valves, — and the change from one to two such valves appears in pen and ink in the contract before set out; and further, that, if any changes were made in the drainage system, she would reimburse plaintiff on the basis of time and material. But
“Mr. Christensen: Will you please make me a duplicate copy of our contract for installing the heating system in my store, as I have lost mine through carelessness, and can’t find it. Attach to the duplicate a codicil with these two changes: Instead of one Jenkins valve for each radiator, make it two so to comply with the P. G. & E. Co. regulations. Also, if any change is made in the drainage system, it will be made on the basis of time and material.
“Yours truly,
“E. R. Harris.”
That, in response to said letter, plaintiff brought to defendant at her store vrhat she supposed to be and believed to be a copy of the contract, or written proposals of the plaintiff; that said contract was represented orally to her to be exactly in accordance with the written proposals, and the contract between plaintiff and defendant; and that defendant, relying on the repfesentations of plaintiff that the writing so brought was identical, and a duplicate of the writing before entered into
It is claimed by plaintiff that he is entitled to recover, if the contract between the parties is as declared by him. The important question in the case is what the real contract was, and this is a question of fact. The principal legal question is as to whether defendant was negligent in signing the contract sued on, and whether she is bound by the contract because of negligent signing. The evidence, is in sharp conflict, and every circumstance for or against either party is argued with considerable elaboration. There are some contradictions and inconsistencies in the testimony of both parties. We cannot take the space to go into the details of the evidence.
Defendant’s two-story building fronts west, and extends
“I will install city heat in your store building now being occupied by the Horse Shoe Grocery Company for the sum of $628. * * * said circuit to be installed so as to control first floor separately from second floor, also install bleeders so as to drain system. Pipe, fittings, labor, etc., to install a first-class job is included in this price.”
It is contended by defendant that this proposal was accepted by her, and that she signed it, and that she signed a duplicate, she keeping one and plaintiff the .other. The two proposals, plaintiff’s and defendant’s Exhibits C and E, have been certified. We think the appearance of them,'and the manner in which they are gotten up, give color to and corroborate defendant’s
“Q. Do you remember what you figured it at ? A. I can’t remember those things,” etc.
Defendant claims that, ■ after plaintiff had entered on the work, and before the job was finished, someone suggested to her that she have the heating company put in another pipe, 10 or 12 feet long, extending through the wall from the main inte
2. It is contended by appellant that, under the evidence, defendant shows no sufficient excuse for signing the contract, without reading it; that she was negligent, and is bound. They state the rule to be that a party who is able to read, and who is not prevented from reading, is bound by the contract he signs. They cite McCormack v. Molburg, 43 Iowa 561, 562; Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547, 550; McKinney v. Herrick, 66 Iowa 414, 416; Reid, Murdock & Co. v. Bradley, 105 Iowa 220, 222; Shores-Mueller Co. v. Lonning, 159 Iowa 95, 98, 100. Appellee cites some of these eases to sustain her position, and claims that she was prevented by the plaintiff from reading the contract. It seems to us that, under the circumstances of this ease, the rule as to negligence in signing ought not to apply in all its strictness, for the reason that the signing by defendant was of a mere copy, which she had requested plaintiff to make for her, but in which is contained a clause or sentence different from the original contract. This is the clause upon which plaintiff seeks to recover herein. The rights of the parties depended, in a sense, upon the original contract, so
“ ‘Here is your letter, and I brought over these copies; you wanted a duplicate copy of your contract, and,’ he says, ‘here it is.’ ”
She says further that defendant had the paper she signed, doubled up in such a way that she could not and did not see the parts heretofore shown, in italic; that he said, further:
“ ‘Here is your duplicate, — better sign it,’ he said; and I signed it, and he drew the other one out óf his pocket. ‘Now,’ he said, ‘as long as you have lost yours, we will have both of them alike, and now,’ he says, ‘sign this one, and I will have one •just like it.’ I was suffering intensely with my limb, and they were calling me in three or four directions. *' * * I had three or four men and this man working in the basement, and plaintiff came rushing up with it. He says, ‘Here is the letter 1 got from you, and here is the contracts that you wanted a duplicate of.’ He was in a hurry, for he said his office was alone. * * * Just then my phone rang, and they were calling for me to come over to my sister’s, — that she had fallen in a faint, and was very sick; and when I went back, I was going' to finisli reading the contract, and he doubles it up, so as to hide the clause he had put in. The phone rang again, and I went to it, and they told me to hurry over. I had my hat on, just ready to go, when he came in, and he said, ‘Here are the contracts, and here is your duplicate, ’ he said; and I took it and commenced to read it, * * * I believed what he said; believed it was an exact copy. I never dreamed of getting a new contract. I just wanted a copy of the old one, to put in my day book.”
It is thought by appellant that defendant’s evidence falls short of any misrepresentations as to the contents of the paper. We do not understand defendant to claim that there was misrepresentation as to the contents of the paper which she signed. Her claim is that he represented that it was another paper, to wit, the proposal. If her evidence is true, plaintiff made a direct affirmation that the paper he presented for her signature was the old contract, as she calls it, or the proposal. That is an entirely different paper, and the contents are different. Appellee claims that, plaintiff’s cases do not sustain his contention. They say that there was a false representation by plaintiff, and that he employed artifice and deception. In the McCormack case, the court said:
“The defendant does not state 'that plaintiffs used any artifice to prevent him from reading the contract. * * * In fact, no excuse whatever is given, except that he signed the contract, relying on the representation of plaintiffs as to its contents. ’ ’
Under such circumstances, it was held that defendant was guilty of inexcusable neglect. In the Wallace case, the party signing did not claim that the contents were purposely misrepresented in the reading, or that he was deceived by any sleight of hand, legerdemain, or artifice. In the McKinney case, the court said that it was not stated in the answer that any misrepresentation was made as to the contents of the writing. In the Reid, Murdock & Co. v. Bradley case, supra, the defendant read the contract before signing, but sought to obviate
Appellee relies on Shores-Mueller Co. v. Lonning, supra, cited by appellant, and contends that it supports appellee’s contention. Appellee quotes from that case as follows:
“As a general rule, one should never sign an instrument without reading it, and, if he cannot read, he should have it read to him; and in the absence of fraud or misrepresentation, if he does not read or have it read, the law will * * * not permit him to say that he did not read, and that it contains something different from what he supposed it did. But if the instrument is fraudulently read to him in terms different from the real ones, or if, by trick or fraud, another is substituted in its place, or if, not being read, its terms are fraudulently misrepresented, and he cannot read himself, or is otherwise without laches on his part, he is not bound, although he signs. These propositions are well sustained by authority.”
Appellee cites Sutton v. Greiner, 177 Iowa 532, where, at page 540, it was said:
“Plaintiff further asked the court to instruct the jury that, to sustain the defense, it must be shown not only that the alleged false representations were made by plaintiff, but that they were of such nature or character as to deceive an ordinarily prudent person, and that it must further appear that defendant ‘was free from any negligence in relying thereon.’ It is to be conceded that authorities substantially to this effect may be found, but it is equally true that the rule, as broadly stated by counsel, is now generally repudiated by the courts. * * # The more reasonable and just rule is that, as between the parties to a contract obtained by fraud and deceit, the party making a misrepresentation for the purpose of inducing another to act will not be heard to say that his false statement ought not to have been believed. Riley v. Bell, 120 Iowa 618; Hetland v. Bilstad, 140 Iowa 411, 420; Howerton v. Augustine, 145 Iowa 246, 248.”
See, also, Burlington Lbr. Co. v. Evans Lbr. Co., 100 Iowa 469. In Tait v. Locke, 130 Mo. App. 273 (109 S. W. 105), the court said:
Appellee cites numerous other cases to the same effect. We think the court did not err in permitting defendant to show what the actual contract was, in the face of the signed writing; and we are of opinion that, under the record, the defendant ought not to be bound, because of her alleged negligence in signing the contract.
We have not attempted to discuss all the details of the matters raised in argument. The opinion is already too long; and, without further discussion, we reach the conclusion that we would not be justified in interfering with the finding and decree of the district court. The judgment is, therefore, — Affirmed.
Dissenting Opinion
(dissenting). I. The majority rightly declares that the law question is, What effect should be given tq the fact that defendant did not read what she signed? I differ from its conclusion that this failure is of no consequence.
In Bannister v. McIntire, 112 Iowa 600, at 604, we quote with approval from Bonnot Co. v. Newman Bros., 108 Iowa 158:
“While persons, on the faith of another’s word alone, every day sign contracts without reading them, the law has ever adjudged this such indifference as will preclude a remedy in event of deception.”
And we held, in McCormack v. Molburg, 43 Iowa 561, at 562, that such indifference “is inexcusable neglect, and the defendant must suffer the consequences of his own folly.” We said in Shores-Mueller Co. v. Lonwing, 159 Iowa 95, 100, that there is a duty to read, and that, as a rule, if one who signs is able to read, has opportunity to read, and omits to do so because of the statements of his adversary concerning the contents of the instrument, “his negligence will estop him from claiming that the instrument is not binding.” For this, citation is made of Bannister v. McIntire, 112 Iowa 600; Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547; Gulliher v. Chicago, R. I. & P. R. Co., 59 Iowa 416; and Reid, Murdock & Co. v. Bradley, 105 Iowa 220. We said, in McCormack v. Molburg, 43 Iowa 561, at 563:
“With scarcely an exception, where the rule has apparently been recognized different from that herein established, some such exception [inability to read the English language or to read] will be found to exist, or some artifice used to obtain the signature of the party, or to prevent him from reading the contract. ’ ’
It may be said that the rule which estops because of reliance on the statements of one opposed in interest is in conflict with other well-settled rules. This, too, is disposed of in Shores-Mueller Co. v. Lonning, 159 Iowa 95, at 100, by the declaration that, so far as a plea for relief on account of having signed on the representation of an adversary in interest is concerned, there is no room to apply the rule “that it is no defense for one guilty of a fraud to say that the other party was negligent in believing him.” As to this, the Shores case says:
There must be a prevention. It is not enough that one sign because the other fraudulently represented that the thing signed was something other than it in fact was. Such representation constitutes fraud. But, where the fraud is effective solely because one does not read when he might, it cannot be an avoidance that one did not read. The two things are distinct. The false representation as-to contents is the fraudulent act. The failure to read is an avoidance, though the act be fraudulent. In other words, fraud is not actionable, if it could not have been injurious were it not for the neglect of the defrauded party. See McCormack v. Molburg, 43 Iowa 561, at 562; Bannister v. McIntire, 112 Iowa 600, 604. When it comes to avoidance of fraud if it be assumed to exist, it cannot, of course, avail to say that a fraud was committed. Whenever the law makes the omitting to do a stated thing an avoidance of fraud, no matter how black, of course it remains such avoidance, no matter how black the fraud. A rule that is available only if fraud be found, and which is operative though fraud be found, would not be a rule at all, if it were inapplicable because fraud was found. See Spitler v. Perry Town Lot & Imp. Co., 189 Iowa 709.
It follows of necessity that the failure to read is not avoided by showing that a representation as to the contents of the paper was relied on. Such representation and reliance work the fraud, but do not excuse the negligence in failing to do what would have made such fraud harmless. This is especially so where the parties have conflicting interests. It militates strongly against the one who claims fraud that he asserts he was misled by the representations of one who had an adverse interest. This thought is clearly put in Green v. Wilkie, 98 Iowa 74, at 80, by pointing out that the representer in that case was naturally more readily relied on because apparently he had absolutely no interest in the business to be done. The same thought is emphasized in Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547, at 550, where it is pointed out that the claim that a paper which proved to be a release, when it was represented to be merely a voucher for back pay, was signed on representation by
As said in Crim v. Crim, 162 Mo. 544 (63 S. W. 491), to permit a party, when sued on a written contract which he admits he signed, to deny that it expressed the agreement he made, merely because he did not read the paper he signed, and, therefore, did not know its stipulations, would absolutely destroy the value of all contracts and negotiable instruments. We held, in McCormack’s case, 43 Iowa 561, at 562, “that such indifference is inexcusable neglect, and the defendant must suffer the consequences of his own folly.” In Reid, Murdock & Co. v. Bradley, 105 Iowa 220, at 225, we say this language is peculiarly applicable, and that the effect of any other rule “would be to render written contracts of but little practical value over those existing in parol only.”
II. It is a self-evident proposition that any avoidance which is held to be insufficient to make an issue for a jury cannot be sustained on review de novo. And it seems to me we have time and again held that a stronger showing than this defendant has made will not even sustain a verdict under the rules which govern appellate review of verdicts. The following are some of them:
In Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547, it was testified, in substance, that, when certain writings were signed, they were not read over, but that the agent of the adversary who procured this signature stated to the maker that the paper he was signing was a voucher for his back pay; that the.
“ * * * after having erased the words to which we have referred. The credit man’s attention was called to the erasure, and there is no doubt in our minds that Bradley thought he had so changed the contract as that it applied to future indebtedness only. It is likely that the credit man directed Bradley to the place where the erasures should be made, but of this there is some doubt. This much does appear, however; that Bradley was able to read and write, and had full opportunity before signing to read the document. * * * Appellant says that the mistake in the signing of the contract was due to oversight in not reading it over more closely, and gives as his only excuse for not doing so: First, the statement of the credit man; second, that ‘he [the credit man] kept nagging the life out of me, and it was dark in the room, and he pointed to the paper, and said, “Scratch out that line there, being as to past purchases, ’ ’ and I scratched it out and signed it. ’ ”
We held there was no case to submit to a jury.
2-a
Typical cases wherein it was held that the issues should go to the jury are as persuasive against sustaining the avoidance made in this case as are the cases wherein it was held that there
“We know of no ease in which it was ruled that the actual misreading of a paper purporting to contain a contract, thereby inducing the signing of it, was not a fraud which the signer
If this be, indeed, a contradiction of well-settled rules to which reference has been made, it would seem to stand alone, and would be in conflict with other cases in the same jurisdiction.
III. It is to be doubted whether the majority means to dissent from the foregoing law propositions. The remaining inquiry, therefore, is whether the evidence can rightly be held to excuse defendant. At the outset, it is to be said that defendant is not entitled to have the evidence weighed, beyond asceri taining whether she has sustained her plea of avoidance. In other words, if that plea asserts no preventing trick or device, and limits itself to charging that a false representation was made as to what she was signing, then it is settled, as matter of law, without resort to the evidence, that failure to read has not been excused. What is her plea? She answers that, in response to said letter, plaintiff brought to defendant, at her store, what she supposed and believed to be a copy of plaintiff’s proposal, but which was the contract set out in plaintiff’s petition; that the plaintiff orally represented that said contract was identical, and the duplicate copy of plaintiff’s written proposal aforesaid; that the defendant relied upon said representation, and signed the said contract; and that the defendant never knowingly or intentionally entered into any other or different contract than the one contained in the written proposal of plaintiff, agreeing to do the whole of the said work and to furnish all of the materials for the sum of $628. A similar answer was held insufficient in McKinney v. Herrick, 66 Iowa 414, at 416.
3-a
Passing that, upon the majority opinion itself the testimony is in equipoise. It is therein stated that there are some contra^ dictions and inconsistencies in the testimony of both parties; that there are other circumstances for and against each, and more or less contradictoriness and inconsistency in the testimony of both; further, that, while the memory of the plaintiff is at
Now, there is a presumption that the instrument signed was read, and that the signer knew its contents. Smyth v. Munroe, 84 N. Y. 354. The burden rests upon the signer to show that the execution was obtained by fraud and deceit. Och v. Missouri, K & T. R. Co., 130 Mo. 27 (31 S. W. 962, at 966). And we held, in Chirurg v. Ames, 138 Iowa 697, at-706, that this burden is discharged only if the one who asserts fraud makes out her case “by clear and satisfactory evidence.” In dealing with this point, appellee says, while it is true that Mr. Christensen and his stenographer to some extent “contradict this,” it was a question of fact for the court to decide whether or not the contentions of the plaintiff or defendant were correct, and, if the defendant’s contentions were correct, then “plainly Mr. Christensen had no right to recover anything from her, as he had been paid in full.” This ignores utterly that appellant is entitled to review de novo.
IV. Defendant testifies that plaintiff, on coming, said:
‘ ‘ ‘ Here is your letter, and I brought over these copies; you wanted a duplicate copy of your contract, and here it is. * * * Here are the contracts, and here is your duplicate. * * * Better sig’n it.’ * * * And he drew the other one out of his pocket, and said, ‘As long as you have lost yours, we will have both of them alike. Sign this one, and I will have one just like it;’ ” that, when she signed, it was represented that she was signing something which was exactly in accord with the original written proposals and contract, and that she relied on the representations of plaintiff to the effect that the writing brought to her, and which she signed, was an exact duplicate of the earlier writing entered into between the parties; that plaintiff had the papers doubled up in such way that she could not and did not see the parts which differ from the original written proposal. She testifies that she never dreamed of getting a new contract, and that all she wanted “was a copy of the old one to put in my day book;” and never knowingly entered into any contract other than the one contained in the original written proposal.
There was no prevention at first, because defendant testifies that she started to read the paper; that she took it and commenced to read it, but did not finish it. Manifestly, then, if there was any prevention, it must have occurred after she had been permitted to read part way. No matter what the plaintiff said in the first instance, no matter how much doubling up of the paper he did, that neither induced reliance nor prevented reading. Neither does it matter that she had her hat on and was just ready to go when defendant came, made his alleged representations, and told her to sign; nor that she was “ill.” For, as has just been seen, despite the representations, and despite the alleged folding up of the papers, and being ill, and having the hat on, defendant did start to read. If, then, there be prevention that destroys the avoidance attempted by the plaintiff, it must be by something done by or chargeable to him which induced the defendant to abandon further reading. What, then, is there left for the claim of prevention ? What done by plaintiff “prevented reading the contract,” to use the words of the majority opinion? What did plaintiff do to stop further reading? As said, everything so far commented on did not stop reading, because defendant started to read. I repeat, What else is there of any act on part of the plaintiff that even tended to stop further reading ? Not a word can be found to the effect that plaintiff did anything, although it may be granted, arguendo, that things other than any act on the part of plaintiff may have had a tendency to explain why the reading was, for the time being, stopped. After defendant started reading, three or four men and a man working in the basement were calling defendant “in three or four directions;” and then the phone
The case falls fairly within the rule of. the cases I have cited, where the agent of the other party, induced signing what, either by erasure or otherwise, changed existing obligation, and in which it was held the contract could not be avoided because such agent falsely represented the actual contents of what was signed. In the Beid case, 105 Iowa 220, 223, which has already had full comment, a quite similar, but stronger ease could not even reach a jury — much less be sustainable de novo.
One may well wonder what the profession will- think, the
Concurrence Opinion
(concurring). I note this concurrence, to emphasize my position that the doctrine which makes it possible for one person to commit an outrageous- wrong upon another, by inducing him or her to act to his or her injury by grossly false representation, and then to come into court and receive judicial absolution for his wrong, upon the plea that the victim of his fraud ought not to have believed him, is as unsound in law as it is in morals.