135 Iowa 555 | Iowa | 1907
The defendant signed an order for the purchase of certain jewelry, and, upon suit for the price, set up as a defense that it was procured by fraud, in that plaintiff’s agent had represented that the order was for goods to be sold on commission by defendant as agent, and for which
It is conceded that, if the order was voidable merely, as when procured by fraud, defendant had his election to rescind and refuse to receive the goods, or accept them and recoup in damages; but if, under the finding of the jury, the order was void, rescission was unnecessary to defeat plaintiff’s claim. To render the order void, it must have been signed by mistake; that is, under the supposition that , it was an instrument of another or different character. This would be no less a mistake because induced by fraud. The distinction should be kept in mind, for an agreement procured by fraud is voidable merely, while one signed by mistake is no agréement at all. 4 Am. & Eng. Ency. of Law (2d Ed.) 157. The rule is found stated as far back as Thoroughgood’s Case, 2 Rep. 9b, in the time of Lord Coke:
Numerous cases illustrate this principle. Thus in Stoever v. Weir, 10 S. & R. 25, the defense that the signature to the single bill sued on was obtained by falsely reading it as a receipt was sustained. In Foster v. McKinnon, L. R. 4 C. 704, the signature was procured by representing that a promissory note was an agreement appointing the defendant an agent for the. sale of a patented machine, and in sustaining the defense Byles, J., said:
It seems plain on principle and on authority that if a blind man, ■ or a man who cannot read, or for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper, which the blind or illiterate man afterward signs, then, at least, if there be no negligence, the signature so obtained is of no force, and it is invalid, not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore, in contemplation of law, never did sign, the contract to which his name is appended.
In Gibbs v. Linabury, 22 Mich. 478 (7 Am. Rep. 675), a promissory note was signed under the supposition that it was a contract making the defendant an agent for the sale of a patent hay fork, and this was held such a mistake