16 Ga. App. 300 | Ga. Ct. App. | 1915
C. A. Towns brought suit against A. S. West for malicious arrest and prosecution. The petition set forth that West was the president and owner of the West Loan and Trust Company, a corporation engaged in lending money; that on November 1, 1913, West swore out a criminal warrant against the plaintiff before a justice of the peace, charging him with the crime of being a common cheat and swindler (a copy of which was annexed to the petition); that under and by virtue of said warrant a lawful constable, duly and legally authorized to serve the same, arrested him and took him before a justice of the peace, detained him, and compelled him to make a bond for the offense charged in the warrant; that, at the resulting commitment trial, he pleaded not guilty to the charge, but West appeared at the trial and knowingly testified
The accusation attached to the petition recited that it was based
Hpon the call of the case for trial the plaintiff offered an amendment to his original petition. The court refused to allow the
The case of McBride v. Macon Telegraph Publishing Co., 102 Ga. 422 (30 S. E. 999), was relied upon to support the contention that because West suggested the necessity for haste, the plaintiff was relieved from all duty to exercise ordinary caution and read the instrument before affixing his signature and delivering it to West. In that case it appeared that the plaintiff’s agent took the alleged contract in his hand, “fraudulently pretended to read the said alleged contract so that it comprised the agreement that had been made between said agent and the business manager of [the] defendant company, thereby fraudulently pretending and holding out to the said defendant’s manager that said paper offered for his
The question is: Was there 'such an emergency at the time of the execution of the note and transfer given by Towns as would relieve him from the consequences of his negligence in failing to read it, or excuse him for relying upon the statement alleged to have been made by West? Cases of this character must, as a rule,' depend upon their particular facts, and no general or inflexible rule can be laid down as to when the maker of a note will be excused from the consequences arising from his failure to read it before signing it. It will be noted that in the cases referred to, and in others passed upon by the Supreme Court and by this court, in which an attack on a written contract, by a plea setting up conflicting parol agreements or by parol testimony seeking to vary the terms thereof, was permitted, the misrepresentations of the party perpetrating the fraud were followed at once or almost immediately by the execution of the instrument which failed to set forth the actual contract. In this case the plaintiff took possession of the instrument of writing, carried it away from the presence of West and across the city, and then submitted it to another person, who apparently signed it directly under the part objected to as fraudulent, and the plaintiff then took it back to West, and thereafter signed it. Without commenting on how unreasonable it appears that West should have represented that the instrument, though it contained this plain transfer, was a simple note, when he knew that the plaintiff would have the paper in his possession, with ample opportunity to read it, and could discover for himself its actual terms (since this question may not now be considered by us), it. does not appear that the plaintiff was unable to read or that he was incapable of understanding the simple terms and provisions of the contract, or that any device was practiced upon him by West to prevent th'e fullest examination of the paper by him between the time when it was delivered to him by West and the time when he returned it to West and executed the instrument; nor
The precise question as to the right of the plaintiff, under the circumstances in this case, to set up a contemporaneous parol contract to vary the terms of a plain, unambiguous written contract, appears to us to have been specifically passed upon in principle by the Supreme Court in the case of Weaver v. Roberson, 134 Ga. 149 (67 S. E. 663), in which the court said: “Equity will not reform a written contract because of mistake as to the contents of the writing on the part of the complaining party (who-was able to read), and fraud of the other party which consists only in making false representations as to such contents, on which the complaining party relied as true because of confidence in the party making them, no fiduciary or confidential relation existing between the parties, and no sufficient excuse appearing why the complaining party did not read the contract.” If one may be allowed to escape the obligations and avoid the consequences of a written contract alleged by him to have been procured through fraudulent representations, it must appear that there was some real reason why he was prevented from exercising that degree of care which the law requires at his hands; and if makers of written contracts may escape therefrom by simply asserting that the other parties misrepresented the effect of the instrument, and that, on account of “hurry,” they failed to read or examine it before signing, no real reason for “hurry” and no actual emergency being shown, the value of any written contract might be destroyed if an unscrupulous party thereto should allege that he was somewhat “hurried” at.the time he executed the instrument. Where a long and complicated contract is to be gone over and scrutinized, and one party fraudulently represents to the other that it contains the exact parol agreement between them, the party deceived, under circumstances like those recounted in the Macon Telegraph Company case, supra, might be relieved from his negligence in failing to read the contract, but where the contract is perhaps embodied in one line or two, or in half a dozen or more, and is entirely simple and plain, and any man who can read can ascertain by a glance of the eye its meaning and effect, a party certainly can not be excused from reading the contract, when he has enough
It appears to us, under the allegations of the petition and of the proposed amendment thereto, that the prosecution instituted by West, on account of which the present suit was brought, was, legally speaking, based on such probable cause as undoubtedly would relieve him from the consequences of instituting or pressing a malicious prosecution. It is of no moment to this court whether West was or was not “a loan shark,” as alleged in the petition, whether his business is one which is “not inherently uplifting to man,” as urged in the brief for the plaintiff in error; for, even in a contest between a “working man” and a “loan shark,” no matter where our sympathies might tend to lead us, we are constrained to follow the law as we see it, and to measure the acts of one by the identical rule that we would apply to the acts of the other. It does not appear from any of the pleadings that the prosecution was unfounded by reason of the fact that the lender exceeded the lawful rate to be exacted as interest, and that therefore the contract of assignment was void.
We think the court did not err in refusing to allow the amendment and in sustaining the demurrer and dismissing the petition.
Judgment affirmed.