Brown v. Rapid Trans. Sales Co. ( 1928 )

VICKERY, J.

The question then is this, and simply this: can a man who can read, who is not prevented from reading, who has ample time to read, who has signed a written contract which sets forth completely the restrictions and terms of the contract, and who pays money down on that contract, not only at that time but at other times, without ever having read it, and who does not know the contents of that contract until he seeks to dispose of the property mentioned in the contract, and then for the first time finds that what the agent represented to him was not as a matter of fact true, — the question is, I say, can a man under these circumstances, after that lapse of time, rescind the contract and recover hack his money ? The question has been answered a great many times in the courts of this state and other states, and the Supreme Court of the United States, and they have all been, so far as I know, to the contrary.

McAdams v. McAdams, 80 OS., 240.

Upton, Assignee, v. Tribilcock, 91 U.S. 45, 50.

Jackson v. Croy, 12 Johns., 427; Lies v. Stub, 6 Watts, 48; Farley v. Bryant, 32 Me. 474; Coffing v. Taylor, 16 Ill., 457; Stapylton v. Scott, 13 Va. 427; Alvanley v. Kinnaird, 2 Mac. & G. 7; Burgess v. Richardson, 29 Beav., 490.

Our attention has been called to a decision of this court in the case of Bowman v. Rapid Transit Land Co., Volume 31 Unreported Opinions Court of Appeals, page 440. That case was a failure of consideration by reason of the inducement having failed. Miss Bowman bought that property only upon the promise of these people to resell the property for her. There is nothing like that in this case. In the instant case it was an immediate sale, and the representations which were made, were fraudulent representations, if anything, for which perhaps an action at law might lie. Now the original contract itself, if these statements were made, contradicts that, and Mr. Brown could have easily discovered, before he paid his money, because the first $100 which he paid on the lot could have been recovered, and so all the money was paid voluntarily upon this contract which sets forth the terms, and these terms were different from those which it is claimed the agent represented, and they were within the means of knowledge of Mr. Brown before the contract was completed.

The whole question resolves itself down to the proposition: Can a man close his eyes and his ears to knowledge that could not have escaped him had he exercised ordinary care and diligence in reading the contract, and then subsequently after quite a period of time, have the contract rescinded? We do not think so. We think the authorities cited in the 80th Ohio St., supra, and other cases, are clearly to the contrary, and we think there ought to be a decree for the defendant in this action.

(Sullivan, PJ., concurs. Levine, J., not sitting.) ting.)