Dellinger v. . Gillespie

24 S.E. 538, 118 N.C. 737

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

Montgomery, J.:

The defendant executed the order to the plaintiff which is set out in the case on appeal. The order was signed by the defendant simultaneously with the making of the contract, whatever the contract was. The defendant could read and write, and he signed the paper, according to his own testimony, voluntarily. The plaintiff made no attempt to conceal any of its provisions, handed it to him to read, practiced no trick or surprise on him to induce him to execute it, and as a matter of fact the defendant commenced to read it. He said, as a witness for himself on the trial, that “ he (plaintiff) pulled ■out the paper and showed it to me- Then I signed the paper. I didn’t hardly get the first line. I saw the figure 3 and thought it was 3 rods for the house. I asked if he would put it up to-day, and ho said he would put it np to-morrow.” It is plain that no deceit was practiced here. It was pure negligence in the defendant not to have read the contract. There it was before him, and there was no trick or device resorted to by the plaintiff to keep him from reading it. In Boyden v. Clark, 109 N. C., 669, it is said by the Court, “If a prudent person, in the exercise of ordinary care and occupying his position, would, by prosecuting his inquiries further or extending his investigations, have ascertained the truth before acting, relief would be refused on the ground of negligence.” If we will apply this principle to the case before us we will see that the defendant’s negligence was inexcusable. The defendant’s defense is that the plaintiff told him, just upon signing the paper, that he would put np the rods for $20, and he was allowed on the trial to testify to this conversation to show what the contract was. This testimony was nothing but an attempt to contradict a written instrument executed by the defendant concerning the same matter. It was an attempt topiove by oral testimony a contract entirely different from that embraced in the written one. His Honor erred in admitting the testimony. But, for another reason, the defendant cannot defeat the plaintiff’s action. According to his own testimony, when the workman Uzzell came next morning to put np the rods the defendant asked to see the paper which he had signed. (Uzzle having it in his hand to collect the money after the work should be done) and upon looking at it said that the contract was not stated truly in the paper. .Yet he allowed the work to go on and to be completed in manner and style altogether different from that which he said the true contract provided for. Upon discovering that the written contract was unlike the contract which he alleged he had made with the plaintiff, he should not have allowed the work to go on. Equity will not permit him under snob circumstances, even if there was fraud in the contract, to allow the plaintiff to complete the work and .then refuse to pay for it. If the contract had been procured through fraud, as the defendant alleged, he ought, when he had examined it the next morning before Uzzell began the work, to have repudiated it and have forbidden the commencement of the work, or he should have made his election to abide by it, as it was written, with the explicit declaration, then made, of his intention to sue the plaintiff in damages for the deceit. Knight v. Houghtalling, 85 N. C., 19. It is not necessary for us to consider whether or not the answer, even after amendment, was sufficient in substance to raise the question of deceit in the contract. There was no error in the matters pointed out for which there must be a new trial.

New Trial.