McCormack v. Molburg, 43 Iowa 561

McCormack v. Molburg

43 Iowa 561 | Iowa | 1876

Servers, Oír. J.

In Bell v. Byerson, 11 Iowa, 233, it is said if the means of knowledge of the alleged fraud were equally open to both parties the law will not interfere to protect the negligent; and in Rogers v. Place, 29 Ind., 577, it is said, if no device is used to put him off his guard, a party who, having capacity to read an instrument, signs it without reading, places himself beyond legal relief. “ If the truth or falsehood of the representation might have been tested by ordinary vigilance and attention, it is the party’s own folly if he neglected to do so, and he is remediless.” 2 Parsons on Contracts, 772; Kerr on Fraud and Mistake, 77. To the same effect is the late case of Nebeker v. Cutsinger, 48 Ind., 436. The defendant does not state that plaintiffs used any artifice to prevent him from reading the contract, nor does he state that he was unacquainted with the English language, or that he could not read. In fact no excuse whatever is given, except that he signed the contract relying on the representation of plaintiffs as to its contents. This is inexcusable neglect, and the defendant must suffer the consequences of his own folly. The effect of such a rule as that claimed by appellant would be.to render written contracts of but little practical value over those existing in parol only. The authorities cited *563by counsel for tbe appellant are not in point. In Walker v. Ebert, 29 Wis., 194, the defendant was a German by birth and education and unable to read the English language. With scarcely an exception, where the rule has apparently been recognized different from that herein established, some such exception will be found to exist, or some artifice used to obtain the signature of the party or to prevent him from reading the contract. None such exist in this case, and the judgment of the Circuit Court must be

Affirmed.