20 Ga. App. 123 | Ga. Ct. App. | 1917
Granting that the third paragraph of the plea was sufficient to withstand a general demurrer, and that the plaintiff was not a bona fide purchaser for value of the note sued on, the striking of this paragraph, along with the others, was harmless to the defendant; for, treating the case as though it was between the original parties to the note, no substantial defense was set up by the plea, and it was properly stricken. “An oral motion to . strike a plea can be made at any time before' the verdict, if the mo
(a) Attention is called to the first subdivision of the plea and especially to the following sentence therein: “Sandridge and Terrell stated to defendant that all they wanted was for him to sign an agreement to go to Atlanta to examine the property, and that they (the said Sandridge and Terrell) would carry him to Atlanta, and that if he liked the property they corrld close the trade. Under these circumstances and by virtue of these representations, which were false and fraudulent, this defendant signed the note.” This court has said: “Negligence in failing to read a written contract and in relying upon representations of the other party to the contract bars the defense of fraud.” See Gibbs v. Fourth National Bank, 17 Ga. App. 388, 391 (87 S. E. 155), and cases cited. There is no allegation that the defendant can not read; and, as he appears to have signed the note, the presumption is' that he can. The specific facts relied on in the instant case are not sufficient to constitute fraud. “Eolly is not always fraud.” “A party who can read must read, or show a legal excuse for not doing so. Fraud which would relieve a party who can read must be fraud which prevents him from reading.” Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915). “One able to read, who executed a written contract without reading it, can not avoid liability thereon because he signed without knowing the contents of the contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.” Georgia Medicine Co. v. Hyman, 117 Ga. 851 (45 S. E. 238). “One who executes and delivers a promissory note without reading or knowing its contents can not avoid liability thereon because he acted ignorantly, without showing some justification of his ignorance, either by reason of his inability to read or by some misleading device or contrivance amounting to fraud on the part of the person with whom he was dealing.” Radcliffe v. Biles, 94 Ga. 480 (20 S. E. 359); Jossey v. Ga. S. & F. Ry. Co., 109 Ga. 439, 446 (34 S. E. 664) ; Walton Guano Co. v. Copeland, 112 Ga. 319
(&) The note sued on was a plain, unambiguous, and complete contract, and the .effect of refusing to strike the plea would have been to vary by parol the express terms of the writing. In Bank of Lavonia v. Bush, 140 Ga. 594 (79 S. E. 459), it was said: “The objection urged to the admissibility of the testimony was that it was irrelevant and sought to vary the terms expressed in the note. The note was an unconditional promise to pay a specified sum for value received, and apparently expressed the entire agreement between the parties. The testimony would in effect engraft conditions upon it which would materially change the contract, and there was no pleading or evidence that the conditions thus sought to be en-grafted were intended to be put in the note and were omitted therefrom through fraud or mistake. It was erroneous, therefore, to admit the evidence. Smith v. Baker, 137 Ga. 298 (72 S. E. 1093); L. & N. R. Co. v. Willbanks, 133 Ga. 15 (65 S. E. 86, 24 L. R. A. (N. S.) 374, 17 Ann. Cas. 860).”
In the case of Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485, 81 Am. St. R. 28), Castlen brought suit against the manufacturing company to recover the purchase price of 150 bales of lint cotton in good merchantable order. After delivering 100 bales of cotton, which he had raised on his farm, Castlen tendered to the manufacturing company other cotton, a portion of which was not raised by him on his plantation. The manufacturing company refused to accept the cotton, on the ground that it was not raised upon the land of Castlen, and sought to show by parol evidence that the contract was for 150 bales of cotton, which Castlen himself raised on his land. In the decision (p. 212) Justice Cobb said: “The contract between the parties evidenced by the writing calls for a certain number of bales of cotton of a certain description. It is clear that, so far as the terms of the contract are concerned, the parties did not intend that the plaintiff should be limited to cotton raised by him. It was a plain and unambiguous contract for the delivery of any cotton, answering to the description specified in the contract, which the plaintiff might see fit to offer to the defendant at the times specified in the contract. Such being the legal effect of the paper, parol evidence tending to show that the real contract was that the cotton was to be raised on the land of the
See also Bond v. Perrin, 145 Ga. 200 (88 S. E. 954), s. c. 18 Ga. App. 179 (89 S. E. 79); Cabaniss v. Dallas Land Co., 144 Ga. 511 (87 S. E. 653); Smith v. Baker, 137 Ga. 298 (72 S. E. 1093); Morgan v. Cobb, 137 Ga. 545 (73 Ga. 844); Brack v. Brantley Co., 134 Ga. 495 (67 S. E. 1128); Bullard v. Brewer, 118 Ga: 918 (45 S. E. 711); Johnson v. Cobb, 100 Ga. 139 (28 S. E. 72); Dendy v. Gamble, 59 Ga. 434, 435; Brannen v. Brannen, 135 Ga. 590 (a, b) (69 S. E. 1079).
The defendant claimed that the parties who sold the land to him made certain false representations in reference to the physical condition of the property and its environment. If these representations were false, the defendant could have ascertained this fact by the exercise of ordinary diligence and by inspecting the property before signing the note. A purchaser can not close his eyes to defects in the thing purchased, so patent that by mere inspection he could ascertain their existence. It has frequently been held by the Supreme Court of our State that a purchaser of land could not defeat an action for the price thereof on the ground that he had been deceived by false representations regarding it by the seller, when it appeared that the purchaser had sufficient opportunity to examine the premises and was not deterred or prevented from so doing by the seller’s fault, and yet failed to make the necessary examination. In the case of Stone v. Moore, 75 Ga. 565, the headnote is as follows: “Where to a suit on certain promissory notes
It will thus be seen that the uniform holding of our Supreme Court is that, in the absence of fraud preventing the inspection of real estate, no plea of failure of consideration on account of its physical condition or environment will be entertained against a note given for the purchase-money of land, where the maker of the note fails to exercise diligence in inspecting the property. In the instant case there was no allegation in the plea that the defendant
Affirmed.