Tillis & O'Neal v. Austin , 117 Ala. 262 ( 1897 )

BRICKELL, C. J.

The demurrer to the special plea interposed by the defendant, and the motion to strike the same from the file, were properly overruled. The plea declared in substance that the execution of the mortgage under which plaintiffs claimed title to the chattels sued for was procured by fraud ; that defendant had refused to sign a mortgage, as requested by plaintiffs, but had agreed to sign a note, and that thereupon plaintiffs had instructed their clerk to prepare a note ; that said clerk then filled out a paper about the size of an ordinary note and told defendant it was a note and not a mortgage ; and that defendant, relying upon the representation that the instrument was a note and not a mortgage, signed the-same without reading it, believing it to be a note and not a mortgage. When the execution of an instrument, which the party signing did not intend to sign and did not know he was signing, is procured by a misrepresentation of its contents, and the party signing it does so without reading it or having it read, relying upon such misrepresentations and fraud, and believing he is signing a different instrument, he can avoid the effect of his signature notwithstanding he was able to read and had an opportunity to read the instrument. Beck & Pauli Lith. Co. v. Houppert & Worcester, 104 Ala. 506; Borroughs v. Pacific Guano Co., 81 Ala. 258. It was not necessary, therefore, to have averred in the plea that the defendant was unable to" read. In an action of detinue, in which plaintiff claims title under a mortgage executed by defendant, such defense is available under a plea of the general issue, or non detinet, and it was competent to prove every fact alleged in the special plea under the plea of the general issue, which was pleaded in the cause. — Foster v. Johnson, 70 Ala. 251. And while a special plea setting up a defense which is fully covered by other pleas in the cause, or which is available under a plea of the general issue, which is pleaded, may. properly be stricken from the file on motion, yet the refusal of the motion or the overruling of a demurrer to the plea, is without injury to the plaintiff. — Feibelman v. Manchester Fire Assurance Co., 108 Ala. 180.

The judgment of the circuit court is affirmed.