38 Ga. App. 46 | Ga. Ct. App. | 1928
1. Under section 4210 of the Civil Code (1910), when the alleged maker of a deed'which is the basis of an action against him files an affidavit that the deed is a forgery, it is the duty of the court to arrest the case and require an issue to be made and tried as to the genuineness of the alleged instrument; but the court does not err in refusing to require such an issue to be made and in allowing the instrument to be admitted in evidence, where the defendant admits the genuineness of his signature, and where it appears, from his testimony, that the purpose of the affidavit is not to enable him to prove a material and fraudulent alteration of the instrument, subsequent to its execution, by the party claiming a benefit thereunder, but is merely to show that he was induced to sign the instrument without reading it, relying upon the good faith of the opposite party to incorporate therein the terms of the agreement previously arrived at. Ford v. Serenado Mfg. Co., 27 Ga. App. 535 (2) (109 S. E. 415).
2. “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it.” Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 (94 S. E. 892); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030); Barnes v. Slaton Drug Co., 21 Ga. App. 580, 582 (94 S. E. 896); Ward v. Colt Co., 28 Ga. App. 24 (109 S. E. 92). Accordingly, the exceptions to the failure of the court to admit certain evidence offered by the defendant are without merit.
3. This was a suit in trover to recover two mules, which, according to the bill of sale introduced in evidence, were conveyed by the defendant to secure a preexisting promissory note for $152.50. The bill of sale was dated November 15, 1923, and was given in consideration of the note being extended for thirty days thereafter. A demand for the property and a refusal by the defendant to deliver the same are admitted, but
Judgment reversed.