Plaintiff dismissed the first suit in writing, and in words as follows:
“Comes now Mary Lillie, plaintiff in the above-entitled cause of action, and asks the court to dismiss said cause. of action at plaintiff’s costs. That the said Mary Lillie, plaintiff herein, further states that she makes no further claim of any kind on the real estate or personal property belonging to the estate of Michael Shriver, deceased, and she fully releases the estate from any claim that she may have against the said estate or the administrators thereof, of every kind and character.
“Mary Lillie.”
The defendants urge this writing in bar of the instant suit. They plead the same as being an accord and satisfaction; that said writing of dismissal was on the consideration that plaintiff should be permitted to remain on the land until March 1st next ensuing; that she was to dismiss and surrender all rights she claimed in and to said land, if that permission were given; and that it was given. Further, that plaintiff agreed to pay rent and to become the tenant of defendants until said time; and that, by this agreement to become tenant and to pay rent, plain
The plaintiff pleads in avoidance that, while the first suit was pending, the defendant William Shriver, her uncle, represented to her that her grandmother was greatly worried about the suit, and that plaintiff was driving the grandmother to her grave; that, unless the suit were dismissed, it would kill the grandmother; that, if plaintiff would dismiss, the matter could be settled without suit, and that defendants wanted everything done and settled as plaintiff’s grandfather, Michael Shriver, wanted it done; that plaintiff fully relied on these ‘ ‘ representations.” Finally, it is pleaded that, believing the heirs of her grandfather would assent to the gift made to her by the grandfather, and fully believing she was but signing a paper that would dismiss her cause without prejudice, she signed without reading, on the representation of one Sullivan, an attorney for the defendants, that the paper signed was not more than a mere dismissal without prejudice.
The plaintiff as a witness testified, in substance, that these representations were made. And Mary, daughter of the plaintiff, eleven years old at the time of the trial, says she heard her uncle William Shriver say he wanted plaintiff to dismiss the case; that it would send grandmother to the grave in disgrace; and that he wanted it settled just as grandpa wanted them to settle. Appellant urges that here is a case of false representations, mixed with a promise which it was at the time not intended to keep; and that, therefore, a fraud was committed, against which a court of equity will relieve.
Grant that this is a correct abstract statement. But the question remains whether the plaintiff, in signing without reading, was not guilty of such negligence as that she may not now assert that she is not bound by all the provisions of the paper signed by her. It is elementary law that, though there be a fraud committed in obtaining a signature, the perpetrator of the fraud may still urge that nothing prevented the party from reading before signing, and that, therefore, he may have no relief, even though there were false representations as to -the contents of the paper. Bonnot Co. v. Newman Bros., 108 Iowa 158; Bannister v. McIntire, 112 Iowa 600, at 604; Gulliher v. Chicago, R. I. & P. R. Co., 59 Iowa 416, at 422; Hopkins v.
II. We have so far assumed the truth of what plaintiff charges. But the fact is, these charges were not established by a preponderance.
Plaintiff says that she knew, 'or heard it stated, that Sullivan was called to prepare dismissal papers; that defendant William Shriver told Yette for what purpose plaintiff had come, and that he wanted her to dismiss. Yette testifies that plaintiff asked him if he thought the heirs would be willing to let her stay on the place if she would sign the paper, and that he told her he was satisfied such an arrangement could be made. He testifies that plaintiff told him that she wanted to dismiss; he
Sullivan testifies that, when he asked plaintiff whether she was satisfied to not go any further with the suit, and to make no further claim on the Shriver estate, she answered, “Yes, if I go on with this suit, all the Shrivers will be mad at me, my mother will disown me, and I want to get out of it;” that she stated further, “I don’t know whether I can get anything out of this suit, and I might get something from my mother.” Yette testifies that plaintiff thought that, on account of her mother’s feeling the way she did, it was the best thing for her (plaintiff) to do; that her mother was not satisfied, the way she was doing. The sole response of the plaintiff is the statement that she does not know whether her mother was very displeased about her having brought this suit or not.
“Q. Did Sullivan read this paper to you? A. I don’t remember. The baby cried; was fussing around so I don’t remember wdiether he did or not.”
At any rate, the stubborn fact remains that, with every ability to read what she was asked to sign, and, to put it at the strongest for her, she signed without reading, in reliance on the representation of opposing counsel that the paper was something other than it proved to be. The only other attempt to show any diversion or prevention can scarcely be said to be anything practiced by the defendants. It is this: The little girl Mary was present, and had charge of a baby. This baby was crying quite a bit. Mary stayed in the room with her mother, and took care of the baby. We are constrained to hold that, on the plaintiff’s own theory, her own neglect estops her to say now that the paper she executed contains something other than it was represented to her it did contain.
We are unable to see how this doctrine has any application here. The defendants denied that plaintiff had any title whatever. If that prove to be the fact, she, of course, had no homestead right. When the parties made settlement, that was an
The foregoing sufficiently indicates why we are constrained to hold that the decree appealed from must be — Affirmed.