Hadden v. Williams

37 Ga. App. 464 | Ga. Ct. App. | 1927

Bloodworth, J.

The plea is insufficient in law and should have been stricken on the oral-motion of the plaintiff. The note sued upon specifically stated that the only warranty given by the seller of the mules was as to their title. This excluded every other express warranty, and the plea set up express warranties only. Purser v. Rountree, 142 Ga. 836 (83 S. E. 958); Hoffman v. Franklin Motor Co., 32 Ga. App. 229 (3, 4) (122 S. E. 896). The defense set up in the plea as to fraud on the part of the plaintiff in inducing the defendant to sign the note was insufficient to excuse him, although he could neither read nor write. The plea does not state that the defendant could not have procured some third person to read the note for him. It sets np no emergency that would excuse him from getting some one else to read it to him. The plea sets up no fiduciary or confidential relation between the parties, nor does it set up that his failure to have some third person read it to him was caused by some misleading artifice or device perpetrated by the plaintiff. On the contrary the plea shows that the defendant himself requested the plaintiff to read the note to him, and that he accepted the reading as correct when there existed no confidential of fiduciary relation between him and the plaintiff. These facts show that he was grossly negligent in the premises. “If one can not read a contract which he is about to execute, it is as much his duty to. procure some reliable person to read and explain it to him before he signs it as it would be to read it himself if he were able to do so, and his failure to obtain a reading and an explanation of it is such gross negligence as will estop him from repudiating it on the ground that he was ignorant of its contents.” Chicago &c. Ry. Co. v. Belliwith, 83 Fed. 437 (28 C. C. A. 358), cited, and approved by this court in Bateman v. Small, 24 Ga. App. 244, 247 (100 S. E. 573). See Walton Guano Co v. Copelan, 112 Ga. 319 (37 S. E. 411, 52 L. R. A. 268) Widincamp v. Patterson, 33 Ga. App. 483 (1, 2); Tinsley v. Gullelt Gin Co., 21 Ga. App. 512 (2) (92 S. E. 892); Barnes v. Slaton Drug Co., 21 Ga. App. 580, 582 (94 S. E. 896). The plea attempting to set up a rescission of the trade was totally inadequate. See Widincamp v. Patterson, 33 Ga. App. 483 (3, 4) (127 S. E. 158). The entire plea should have been stricken, and the error in not striking it rendered the further proceedings nugatory.

Judgment reversed.

Broyles, G. J., and Dulce, J., concur.