60 So. 1001 | Ala. Ct. App. | 1912
The reporter will set out count No. 4 of the complaint, which fully states plaintiff’s case; also' pleas No. 1 and No. 2 of defendant A. M. Sullens, together with the demurrers to said two pleas. The overruling of these demurrers by the trial court, and an overruling by it of like demurrers to like pleas filed by the other defendants O. E. Harris and Geo. M. Burleson, which are not necessary to be set out, raises the ques-. tion as to the only erorrs here assigned.
It will be observed that in the pleading as set out both sides — plaintiff and defendants — treated the defendants Sullens, Harris, and Burleson as sureties for the defendant Wilson on the contract set out in said count No. 4 of the complaint; whereas, they were only guarantors as decided by this court on a construction of a like contract in the case of W. T. Rawleigh Medical
We shall deal first with the sufficiency of the second-plea as a defense, tested by the demurrers. In Smith v. Kirkland, 81 Ala. 350, 1 South. 277, Judge Somerville, speaking for our Supreme Court on the same question differently raised, says: “It has been long settled in this state by a line of decisions which seem to be supported by the weight of authority that it is a good defense to an action on a bond that a defendant, who is a surety, intrusted the bond to the principal ob-ligor as an escrow, with authority to deliver it only on the express condition that other named persons should join as sureties in its execution prior to such delivery, and that the instrument was delivered to the obligee in violation of this condition. — Guild v. Thomas, 54 Ala. 414 [25 Am. Rep. 703], and authorities cited, there; Bibb v. Reid, 3 Ala. 88. There are two established modifications of this rule: (1) It does not apply to commercial paper which has come into the hands of a bona fide purchaser before maturity, who is without notice of the condition.- — Marks v. First Nat. Bank, 79 Ala. 550 [58 Am. Rep. 620]. (2) It does not apply where the surety having knowledge or notice of the delivery of the bond suffers the principal to act under it to the prejudice of the obligee, so as to waive the condition, and thus estop the surety from insisting on the defense.— Wright v. Lang, 66 Ala. 389.”
Whatever may he the rule in other jurisdictions, under these authorities, which have never been questioned, so far as we can find, by any later adjudications of our own Supreme Court, we are bound to hold the second plea of the sureties, as set out in the report of the case, sufficient, as against the demurrers aimed at it. It is clear that in such a plea it is not necessary to allege that Wilson, the principal obligor, was the agent of plaintiff, the obligee, in order to excuse the sureties from liability for his acts. He was, as the plea imports, the agent of the sureties to deliver the bond or contract, hut that only upon certain conditions named in the plea. As such agent for them he dealt with the plaintiff in delivering such bond or contract; and plaintiff in thus dealing with the known agent of another party was acting at its peril — at least as to a non-commercial paper, as this here involved is — and was bound to inquire and ascertain the extent of that agent’s authority to deliver. Hence, it was also not necessary to allege in said plea that plaintiff had knowledge or notice of the conditions upon which the instrument was to he delivered to plaintiff, the obligee, because the law, as said, imposed upon it the duty of finding out, and imputes to it such knowledge or notice as it would have gained by proper inquiry.' Authorities supra; Sharp v. Allgood, 100 Ala. 183, 14 South. 16, and authorities there cited.
This plea, as well as the first plea, was in effect a
If the sureties had knowledge of the delivery of the bond or contract to plaintiff, in violation of the conditions imposed by : them upon its delivery, and with such knowledge or notice suffered the principal to act under it to the prejudice of the plaintiff obligee, they would, of course, as hereinbefore shown, be estopped from pleading the facts relied on in their plea. Bnt such matters of estoppel do not have to be negatived in their plea. The plaintiff could only get the benefit of such an estoppel by a replication setting it up in avoidance of the sureties’ plea.
As to the first plea and demurrers thereto, it is sufficient to say that the rule of law, long established in this state and followed by an unbroken line of authorities, both new and old, is: “Where a person signs an instrument without reading it, or if he cannot read, without asking to have it read to him, the legal effect of the signature cannot be avoided by showing his ignorance of its contents, in the absence of some fraud, de: ceit, or misrepresentations having been practiced upon him; but the rule is otherwise, and the instrument will be held void, where its execution has been obtained by a misrepresentation of its contents — the party signing a paper which he did not know he was signing, and did not really intend to sign. It is immaterial, in the latter aspect of the case, that the party signing had an opportunity to read the paper, for he may have been prevented from doing so by the very fact that he trusted to the truth of the representations made by the other party with whom he was dealing.” — Burroughs v. Pacific Guano Co., 81 Ala. 258, 1 South. 213; Leonard v. Roe
The counsel of appellant, plaintiff below, practically concede this general rule; but insist that it applies to exempt from obligation on the instrument the parties who signed it on false representations as to its contents only when those false representations were made by the payee or obligee in the instrument or his agent or some one in collusion with such payee or obligee, and that if such false representations Avere made by any other person than such payee or obligee or his agent, or some one in collusion with such payee or obligee, and neither had any notice or ImoAvledge of them, as contended in this case, then the payors or obligors are liable, notAvith-standing they Avere induced and deceived into signing it, Avithout reading it, upon the false representations made by some other party (the principal obligor, in this case) as to its co'ntents. We have carefully gone through all the cases we could find in .this state dealing at all with the general rule, and find that in none of them has the particular question ever been dealt with; but we do find that one exception to it has been recognized. This exception, however, is of such a class as to impliedly exclude or deny the exception here contended for. It has been held that, where a commercial paper
The defense set up in the first plea, now being considered, is not different in principle from that set up in the second plea, which we have hereinbefore considered and held good as against the same demurrers aimed at this. The authorities cited as sutaining our view there, equally support it here — that the defense that the sureties signed the contract or bond, Avithout reading it, induced thereto by the false representations as to its contents made by the principal, Wilson, is available to them in a suit by the payee, notwithstanding the said Wilson Avas not the agent of the payee in so doing, notAvith-standing said payee Avas not in collusion Avith him, and notAvithstanding said payee knew nothing of said false representations at the time he accepted the bond or contract. — Sharp v. Allgood, 100 Ala. 183, 14 South. 16, and other authorities supra.
The first plea was demurrable for failing to allege that defendants did not read the contract, but this point was not raised. — Tillis & O’Neal v. Austin, 117 Ala. 263, 22 South. 975.
The judgment of the lower court is therefore affirmed.
Affirmed.