Pirkle v. Gurr
128 S.E.2d 490
Ga.
1962
Check Treatment

*1 materially been question involved, here has never overruled (Code 6-1611; effect statute the force of a has modified, § applica is an 30 SE Cawley, Calhoun ought apply and precedent this court ble and ap majority instant case. The failure of follow the Douberly’s justified case not ruling follow the ply and members supposition that the suggested or authorized provisions of the exact 26-301 this court were unaware § 1937. decided when official Code I Duckworth say am authorized Chief Justice in this fully Almand concur dissent. Justice 21788. PIRKLE et al. v. GURR.

Argued September 14, 1962 October 19 62 Decided Rehearing 1962. denied October *2 plain- Hayes, Cary, & for Stewart, Sartain Simons (cid:127)& Lindsay, tiffs in error. n

Irwin, Bird, Franklin B. Anderson, Anderson, Smith contra. alleging Justice. Does cancellation a Mobley, because fail to state cause of action procurement fraud in someone it failed have person, a blind plaintiff, shows signed her before she it? read the instrument “There numerous are decisions this court to the effect that instrument it its signing reading is bound terms, appears he could not unless read emer- imposed the signing reason or that was under some upon, read, the failure to failure to gency which excused brought read about some fraud or device misleading party.” Singletary, 133 Ga. the other party ASR “A to contract who 92, 134 can read must *3 legal so, a not fraud read, doing excuse for or and prevents relieve can read must be party which will a who such as (6 reading.” Foy, 596, Lewis v. 189 SE2d him Ga. 598 from estab- 788). other full-bench of this court These and decisions person a who and lish distinction between can read a clear-cut one read is however, not. who can not “Where, one can who misrepresentations of the sign instrument the by induced an to he not bound contents, as its or to character is party other upon representation the rely the of may, thereby. ordinarily, He it con- the or as to what instrument other as to what party some request party, the other failure to or tains; his and mere negligence generally not be such it to him will else, read upon Grimsley him.” the v. instrument make as will question the 58, supra. “Ordinarily 56, 133 Ga. Singletary, falsity party could have complaining the ascertained the whether determination proper is for representations by the 770). (176 Marshall, v. Ga. 640 jury.” 639, Elliott 179 SE by the negro, case, illiterate supra, defendant, In representation she was by a deed sign induced was case the a present plaintiff, person, signing a note. In blind representation sign warranty deed was a induced

427 creating a deed instrument was a revocable trust. In each case party question though read, unable to a different was reason, each the party in- was induced to by misrepresentation strument a as to the of the instru- character ment. The Grimsley case is controlling of the issue therefore here presented plaintiff whether we hold that or not the was rely entitled to representations attorney on the of defendants’ as to the nature instrument she and whether or not negligent in before failing to have instrument her read signed she it are questions jury. for the determination arriving conclusion, In at we are not unmindful full-bench decision of this court in case of Carolina West v. Housing (89 188). &c. Corp., 211 Ga. that case 789 SE2d In petition alleging ignorant people, were plaintiffs colored illiterate, incapable practically reading under- totally the nature their standing papers presented to them signature subject general held demurrer. The court upon Truitt-Silvey Callaway relied Hat Co. v. 130 Ga. Truitt, (2) (61 supra, 637 v. 596, 598, and Lewis Ga. 189 party both which involved a who could but failed read read, proposition having for the that “one the capacity not signs opportunity read a written and who it, contract, signature emergency, under and whose is not any obtained set artifice can not any party, trick other afterwards signature instrument.” fraud of his to the up procurement persons who can For more recent this rule to applying cases (3) 17, Ga. read, Budget Charge Peters, v. 213 18 see: Accounts (99 (2) SE2d (96 Perry, v. Ga. 480 887); SE2d Adams (102 598); De- (1) Martin Alford, SE2d 881); Long SE2d Cobb, 215 *4 The on with the decision present case is all fours full-bench supra. in Ga. Grimsley 56, of this court v. We Singletary, 133 that in making present are bound decision and follow it by Housing v. Carolina &c. 211 Ga. Anything Corp., one. West contrary to the case is not 789, supra, which follow it. and we decline to All

Judgment except the Justices concur, Duck- affirmed. worth, Grice, JJ., C. Candler and who dissent. J.,

428 diligence Justice, dissenting. Equity in the requires

Candler, protection rights. Phillips 37-211; Hayes, of one’s own Code v. § 19). (91 Neither will equity 212 149 SE2d nor law Ga. neglect take care themselves. Marshall assist those who Ga. Means, (56 444); Rogers, AD 144 (5) v. 12 Ga. 61 v. Smith (87 Acceptance Corp. 213 772); Romar v. Parham, 576 SE and 615). (98 “It law in this (2) is well-settled 225 Ga. SE2d relief to one grant by who exercise equity State will no complained diligence prevented injury could have ordinary (42 136 Morrison 434); Prince v. Ga. SE2d Friedman, of.” 202 (167 Browning v. 321); Rich- Colquitt Co., Ga. 104 SE 176 In (182 Lewis ardson, 181 essential unanimously SE2d said: “It is that the validity relationships solemnity to all business voluntarily It contracts, executed, upheld. be freely written tragic jeopardized rule by if all such contracts were would be parties one of the thereto, would because permit law by testimony into court and go oral therewith, dissatisfaction diligence reasonable ob- conduct of fraud and establishing short plaintiff signed contract. If tain nullification written of a due knowing its it was contents, deed here involved negligence, responsibility her own is hers and she signed.” allegations by as The abide contract must the instant if case, reprehensible show true, amended attorney prepared part presented who conduct on execution, plaintiff yet they fail the deed plaintiff the time the existed at executed any emergency it or practiced trick or artifice was on her to induce her to any fiduciary between relationship it or that there was her grantees attorney represented defendant who grantees in the transaction, her and the or between deed involved. Although apartment she was old, confined her and blind, required plaintiff deed delay execution of the be apprised until could legal she its contents and of its effect grantees’ other attorney. someone than the defendant For a decision which is controlling here, recent court see West Housing Corp., v. Carolina &c. (2), Ga. 789 supra. sought in that petitioners The to cancel a deed *5 the the to one and it was held had executed of defendants to the insufficient allegations petition totally “are amended making to any emergency relieve them due no being necessary delay; them to and there petition fails parties, the the between fiduciary relationship sustaining action, court not err in allege a and the did cause of there petition.” It was dismissing demurrer alleged petitioners that the petition out that the amended pointed totally illiterate, and practically ignorant people, colored were paper the nature understanding reading and incapable of night, late that it was at signature; their to them for presented guidance and there no one for them to to for advice turn rely required time; therefore, at were, agents defendants, upon representations made, there Truitt- authority ruling which were As false. Calloway 637, supra, Silvey Truitt, Hat Co. full- both of are supra, and Lewis v. on this court. For relied bench cited and decisions, were agree majority ruling stated I cannot above, reasons instant case. say I am authorized that Chief Justice Duckworth and in this dissent. fully Grice concur Justice ESPEY et al. OF 21819. VILLAGE ATLANTA et al. NORTH argu- appearing It made Justice. from statements oral Grice, that, sustaining ment general before this court since of the only the denial relief demurrer all wit, have sought, defendants done injunction, having supersedeas sought be enjoined, no therefore, moot; become been all have thus issues granted, Seaboard Air-Line dismissed. Carlton v. the writ error (77 B., 139 Ga. 692 except concur, Head, error dismissed. All Justices

Writ of J., who dissents. P.

Argued 10, 1962 9, 1962 October October —Decided Rehearing denied October 22, 1962.