Daniel v. Drummond

161 S.E. 670, 44 Ga. App. 357, 1931 Ga. App. LEXIS 724

• Court: Court of Appeals of Georgia
• Decided: December 15, 1931
• Docket: 21720
• Status: Published

Opinion

Broyles, C. J.

1. “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it.” Odom v. Cotton States Fertilizer Co., 38 Ga. App. 46 (2) (142 S. E. 470), and cit.

2. In the instant case the defendant’s affidavit of illegality, construed most strongly against him, failed to set forth the defense of non est factum or any other defense to the foreclosure of the plaintiff’s mortgage, and the court erred in overruling the plaintiff’s written motion to dismiss the affidavit of illegality. That error rendered the further proceedings in the case nugatory.

Judgment reversed.

Jjulce, J., concurs. Bloodnvorth, J., absent on account of illness.