Stacy v. Ross , 27 Tex. 3 ( 1863 )

Wheeler, C. J.

The plea, supported by the affidavit of the defendant, in effect denies the execution of the note as set out in the petition. It sets out specially the facts which, in the case of a specialty, would he sufficient to support the plea of non est factum. That plea is proper when the deed varies from that declared on, or when it was void ab initio ; as when it was obtained by fraud, or when a different instrument was substituted for the one which the defendant supposed he was executing. (12 Johns., 337; 10 Mass., 267, 274.) “If a deed be misread, or misexpounded to an unlettered man, this may be shown-on non est factum, because he has never assented to the contract.” (Per Spencer, J., 12 Johns., 337.)

As respects the liability of the defendant on the contract, it can make no difference that it is not a specialty, but a simple contract. Fraud will equally avoid the contract. The note having been read to the defendant as for a different and less amount than expressed upon its face, and being an unlettered man he was imposed upon and really signed a different note from that which he supposed he was signing. Under these circumstances he can not be said to have given his assent to the contract, and is not bound by it. The evidence fully establishes the truth of the plea. The question of the fraudulent misreading of the note was distinctly submitted to the jury by the charge of the court, and their finding affirms the misrepresentation and imposition practiced upon the defendant. He cannot be held bound by a contract to which his signature was thus obtained, and to which he had never assented.

Judgment affirmed.