W. T. Rawleigh Co. v. Oliver ( 1942 )

I concur in the ruling of the majority of the court that the evidence failed to show that McCosh was acting as agent of the plaintiff in procuring the signature of the defendant Oliver to the alleged contract of guaranty and in the ruling of the majority that a verdict was demanded in favor of the plaintiff. Also, I think the verdict was demanded for the plaintiff because the defendant failed to show such fraud or emergency in the signing of the contract sued on as would, under the law, relieve him from liability thereon. There was no fiduciary or confidential relationship shown to exist between the parties. According to the undisputed evidence the only relationship between them was that the defendant, Oliver, had bought patent medicines from McCosh, the agent of the W. T. Rawleigh Company, who asked him to sign the contract sued on. There was no emergency shown in the signing of the instrument by the defendant that would relieve him from liability. McCosh, the agent of the plaintiff, went by the house of the defendant and asked him to do him a favor, that is, to sign the contract in question, and told him that it was a recommendation to W. T. Rawleigh Company, and that there was no liability or security attached. Oliver testified that he told McCosh that he had lost his glasses and could not read, but he did not even request that the paper be read to him, though there is nothing to show that he could not have had McCosh read the paper to him or could not have had some one else to read it to him. It appears from the evidence without contradiction that the defendant failed to exercise any reasonable care or diligence in the execution of the contract, but just went ahead and signed it on the representations of McCosh that it was a recommendation, and that there was no liability attached to it.

"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." Tinsley v. GullettGin Co., 21 Ga. App. 512 (94 S.E. 892). In Lewis v. Foy,189 Ga. 596 (6 S.E.2d 788), it was said: "Any misrepresentation, act or artifice, intended to deceive, and which does deceive another, who is reasonably diligent in the use of the facilities at his command, is a fraud that will authorize a rescission of a written contract. It has often been held by this court that a party to a contract who can read must read, or show a legal excuse for not doing so, and that fraud which will relieve a party who can read must be such as prevents him from reading. Stoddard Manufacturing Co. v. Adams, 122 Ga. 802 (50 S.E. 915); Truitt-Silvey Hat Co. v. Callaway, 130 Ga. 637 (2) (61 S.E. 481); Weaver v. Roberson, 134 Ga. 149 (67 S.E. 662); Baker v. Patton, 144 Ga. 502 (87 S.E. 659);Stokes v. Humphries, 152 Ga. 621 (111 S.E. 36); Green v. Johnson, 153 Ga. 738 (113 S.E. 402);Martin v. Turner, 166 Ga. 293 (143 S.E. 239); Wynn v.First National Bank of Newnan, 176 Ga. 218 (2) (167 S.E. 513); Swofford v. First National Building Loan Association,184 Ga. 312, 314 (191 S.E. 103)." It was held in the headnote in that case: "The fact that the defendant in the instant case took the deed out of the plaintiff's hands when she undertook to read it will not excuse her for failure to read it, nor does the fact that she did not have her glasses, that they were inaccessible, and that she could not read without them justify her failure to read; nothing being alleged to show an emergency making it necessary that she sign without delay. The defendant's saying he was in a hurry constituted no emergency." It was said in the opinion in that case at page 600: "The Court of Appeals has consistently held that the mere fact that the failure to read the contract was because the party did not have his glasses and could not read without them, without more, would not authorize a rescission of the contract." See also Mutual Benefit Health c.Asso. v. Marsh, 62 Ga. App. 425, 433-435 (8 S.E.2d 117).

I am of the opinion that the demurrer to the defendant's answer as amended should have been sustained and the answer stricken. Nothing is alleged in the answer that shows any artifice, device, or fraud which reasonably could be said to have prevented the defendant Oliver from having the contract read to him and apprising himself of its contents, and nothing is alleged in the answer that shows that McCosh was acting as agent of W. T. Rawleigh Company in procuring the signature of the defendant Oliver to the alleged contract of guaranty. Therefore I dissent from the ruling of the majority of the court that the answer of Oliver as amended set up a defense to the contract sued on.