Beck & Pauli Lithographing Co. v. Houppert

16 So. 522, 104 Ala. 503

Opinion

COLEMAN, J.

The complaint contains several counts, some of which are in the common form, and others upon a breach of a special agreement. The defendant pleaded the general issue and several special pleas.

The only assignments of error which arise upon the pleadings, are to the ruling of the court, overruling plaintiff’s demurrer to two pleas filed on the 9th of October, 1893. These two pleas were intended to answer the counts of the complaint based upon an alleged breach of a written agreement, and aver as a defense that the execution of the written agreement was procured by fraud. 'It is well settled that a person who signs an instrument without reading it, when he can read, can not, in the absence of fraud, deceit or misrepresentation, avoid the effect of his signature, because not informed of its 'contents; and the same rule would apply to one who can not read, if he neglects to have it read, or to enquire as to its contents. In such case; ignorance of the contents is attributable to the party’s own negligence. — Goetter v. Pickett, 61 Ala. 387 ; Pacific Guano Co. v. Anglin, 82 Ala. 492; Watts v. Burnett, 56 Ala. 340; Cannon v. Lindsay, 85 Ala. 202; Jones v. Cin., Selma & M. R.R. Co., 89 Ala. 376 ; Sheldon v. Carter, 90 Ala. 380.

In these cases it was held that the ignorance of the party was attributable to his negligence, in not reading the instrument, or in not making proper enquiry of its contents, and where there is an absence of fraud, deceit or misrepresentation. But the rule is otherwise where its execution is obtained by a misrepresentation of its contents ; the party signing a paper 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 representation made by the other party with whom he was dealing. — Burroughs v. Pacific Guano Co., 81 Ala. 255; Johnson v. Cook, 73 Ala. 537; Foster v. Johnson, 70 Ala. 249; Davis v. Snider, Ib. 315; Kinney v. Ensminger, 87 Ala. 340.

The facts as averred in these pleas show that the parties came to an agreement, that plaintiff’s agent drew up the writings, and then read them over to the defendants, in the terms agreed upon, and believing that' the instrument was written as read^ over, they executed it.' The pleas then shows the difference in the instrument signed, and the one he intended to sign. If these averments are true, the instrument was procured by fraud and misrepresentation, and is void. The demurrer was properly overruled.

The court permitted the defendants to testify as to the extent of their business, and as to how much stationery and materials of the kind, the subject of the litigation, were annually consumed .by them. This was error. It was no part of the vendor’s duty, under the facts of this case, to ascertain and determine, whether the character or quantity of the goods and articles offered for sale by them would be useful or beneficial to the trade and business of the purchaser. Nothing that he said was relied upon as an inducement to make the purchases, and there is no evidence that the vendor had any information on the subject. The question was directly settled in the case of Shrimpton & Sons v. Brice, 102 Ala. 655.

The case was tried by the court without the intervention of a jury, and under the statute this cour^ has jurisdiction to render final judgment. The evidence is in such condition, that we think the ends of justice would be better served by a reversal and remandment of the cause. Where the trial court has the opportunity to hear the witnesses and observe their manner of testifying, it has an advantage in weighing evidence, which is not furnished to this court by the record. We will, therefore, -forbear making any comment or criticism of the evidence, lest what we say, might have undue weight on another trial. It should be borne in mind, that the burden is on the party who undertakes to impeach a written instrument for fraud, to establish the fraud by clear and satisfactory evidence.

Reversed and remanded.