Eliopolo v. Eicholz

Atkinson, J.

1. “One having the capacity and opportunity to read a written contract, and who signs it, not under any emergency, and whose signature is not obtained by any trick or artifice of the other party, can not afterwards set up fraud in the procurement of his signature to the instrument.” Truitt-Silvey Hat Co. v. Callaway, 130 Ga. 637 (2) (61 S. E. 481); Stoddard Manufacturing Co. v. Adams, 122 Ga. 802 (50 S. E. 915).

2. “Equity will not reform a written contract because of mistake as to the contents of the writing on the part of the complaining party (who was able to read), and fraud of the other party which consists only in making false representations as to such contents, on which the complaining party relied as true because of confidence in the party making them, no fiduciary or confidential relation existing between the parties, and no sufficient excuse appearing why the complaining party did not read the contract.” Weaver v. Roberson, 134 Ga. 149 (67 S. E. 662). The above principle does not apply to actions for reformation of instruments which by mutual mistake do not evidence the true agreement of the parties. Green v. Johnson, 153 Ga. 738 (3) (113 S. E. 402).

No. 4811. February 15, 1926.

3. An assignment of error on a refusal of the trial judge to allow a witness to answer a question is imperfect where it is not alleged that the court was informed by counsel, at the time, as to the answer anticipated from the witness. McElwaney v. MacDiarmid, 131 Ga. 97 (2 a) (62 S. E. 20). The assignments of error relating to refusal of the court to allow a question propounded to the witness were insufficient to comply with the foregoing rule.

4. The written instrument that the plaintiff soug’ht to have reformed in this ease purports to speak the entire contract, and is not ambiguous. The evidence shows that the plaintiff signed the instrument, and that he could have read it, but failed to do so. It also fails to show that his signature was obtained by any trick or artifice of the other party. It also fails to show that the contract was the result of mutual mistake of the parties.

5. The judge did not err in granting a nonsuit.

Judgment affirmed.

All the Justices concur, except Himes, J., dissenting. Robert L. Golding and H. Mercer Jordan, for plaintiff. Lawrence & Abrahams, for defendants.