Western Carolina Lumber Co. v. Sturgill

ClakksoN, J. Pursuant to order of the court, this case was referred to and heard before J: W. Ragland, Esq., referee. At the beginning of the hearing, and before hearing began, the defendant excepted to the trial before the referee and demanded a jury trial and tendered the issues before set forth. The referee, after hearing the evidence, gave judgment for plaintiff. Upon exceptions taken by the defendant, the case was tried in the Superior Court before a jury upon the issues tendered by defendant. The jury answered the issues in favor of plaintiff. “Verdicts and judgments are not to be set aside for harmless error, or for mere error and no more. To accomplish this result, it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right. In re Ross, 182 N. C., 477; Burris v. Litaker, 181 N. C., 376.” Wilson v. Lumber Co., 186 N. C., 57; Layton v. Godwin; 186 N. C., 313; S. v. Love, 189 N. C., 774. *780 Smith, G. J., in Ray v. Blackwell, 94 N. C., 10, says: “It is a rule too firmly established, in the law of evidence to need a reference to authority in its support; that parol evidence will not be heard to contradict, add to, take from or in any way vary the terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for such purpose, for the reason that the parties, when they reduce their contract to writing, are presumed to have inserted in it all the provisions by which they intend to be bound. 1 Greenleaf on Evidence, sec. 76; Ethridge v. Palin, 72 N. C., 213.” Exum v. Lynch, 188 N. C., 395; Overall Co. v. Hollister Co., 186 N. C., 208. The distinction between fraud in the factum, and fraud in the treaty is ably discussed by Stacy, G. J., in Furst v. Merritt, ante, 397. In the opinion various definitions of fraud are set forth. If defendant has sufficiently pleaded fraud, from the entire record, we do not think the evidence sufficient to establish it. “Defendant could read and write. The contract was discussed by paragraphs with E. B. Duane and when agreed upon J. L. Henderson would write it on the typewriter. When finished, each were given a copy and defendant read it over before signing. The common law affords to every one reasonable protection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence or folly or a careless indifference to the ordinary and accessible means of information.” 2 Kemp Com., 485; Smith on the Law of Frauds, p. 110, note. In the ease of Dellinger v. Gillespie, 118 N. C., 737, Gillespie could read and write and he signed the contract but did not read it. This Court held: “It is plain that no deceit was practiced here. It was pure negligence in the defendant not to have read the contract. There it was before him, and there was no trick or device resorted to by the plaintiff to keep him from reading it.” Colt v. Turlington, 184 N. C., 137; Currie v. Malloy, 185 N. C., 215; Grace v. Strickland, 188 N. C., 373; Colt v. Kimball, ante, 169; Dunbar v. Tobacco Growers, ibid., 608. The principle of rescission and cancellation by reason of fraud, as suggested in the pleadings, in order to constitute fraud of this class, the test is laid down in Adams Eq. (7 Am. Ed.), sec. 177: “There must be a representation, express or implied, false within the knowledge of the party making it, reasonably relied on by the other party, and constituting a material inducement to his contract or act.” Composing the answer to meet defendant’s contentions, he alleges that the true understanding he had of the terms which specifically protected him against any rise in the price of production, á material part of the contract, and which bound it to pay to the defendant such difference in cost, was left out by the artful design, scheme and fraud of the plaintiff. *781 The defendant further alleges: “Such material part of the contract was left out by the design and procurement of the plaintiff, without the knowledge or consent of this defendant, and the plaintiff has thereby wrongfully and fraudulently, as defendant is advised and believes, taken advantage of the superior training, knowledge and education of its representative in dealing with this defendant, who has not had such training and education, and who is unskilled in the drawing of contracts, and who, by reason of his position, had to rely upon the plaintiff.” - As before stated, defendant could read and write; the contract was read over by paragraphs and agreed upon; he read the contract before signing it. Nothing was concealed from him. The contract was typed- — ■ easy to read. Where is there any artful design or scheme, or fraud? If any material part was left out, he agreed to what was written, and it is too late now to complain. He should have refused to sign the contract at the time. Smith on”the Law of Frauds (1907), part see. 77, says: “A purchaser of land cannot be allowed to shut his eyes either carelessly or wilfully and receive a conveyance of property without using the ordinary means and care that a business man of ordinary capacity would use under the circumstances, and then afterward claim that at the time the deed was executed he understood some other or different estate or interest was to be granted by the deed. To permit this practice would be to open the door to fraud. . . ■ . The presumption of law is that a person of sound mind will exercise ordinary prudence in making contracts.” In Newbern v. Newbern, 178 N. C., p. 4, Glark, C. J., said: “‘In order to correct a deed which is absolute on its face, and to convert it into a security for debt, it must be alleged and proven that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue influence,’ and the intention must be established by proof, not merely of declarations, but of facts, de hors the deed, inconsistent with the idea of an absolute purchase. Sowell v. Barrett, 45 N. C., 50, citing Streator v. Jones, 10 N. C., 423; Kelly v. Bryan, 41 N. C., 283, and saying that ‘otherwise, titles evidenced by solemn deeds would be at all times exposed to the slippery memory of witnesses” In Taylor v. Edmunds, 176 N. C., p. 327, it was held: “It is true, as the defendant contends, the plaintiffs were educated men, and if they executed this deed merely by reason of their failure to read the same, they are bound by their voluntary act, and should not recover. Dellinger v. Gillespie, 118 N. C., 737. This is well-settled law, but the evidence in this case tended to show, and does show (as the jury find), that because of the confidential relationship existing between themselves and the defendant, covering a long course of dealings, during which they executed a large number of deeds sent them by Edmunds and Jerome *782 for lots sold by them, the plaintiffs had a right to assume that he would submit to them for execution deeds only for lands embraced in the contract, and that they were misled by the manner of submitting this deed to them for execution, sandwiched in with other deeds for property embraced in the contract of 22 March, 1912, and especially that they were misled by the false statement of the defendant’s agent and co-grantee, ~W. G. Jerome, that ‘these papers wind up that property.’ ” At p. 328 it is said: “The mere fact that a grantor who can read and write signs a deed does not necessarily conclude him from showing, as between himself and' the grantee, that he was induced to sign by fraud on the part of the grantee, or that he was deceived and thrown off his guard by the grantee’s false statements and assurances designedly made at the time and reasonably relied on by him.” Parol evidence will not be heard to contradict, add to, take from or in any way vary the terms- of a written contract. The bargain made by defendant turned out to be a hard one, on account of theTncrease in the operation, hire of labor, etc. Defendant started to work under the terms of the contract. Radical changes in the cost of operations was the test of negotiations and agreement, under the contract, for increase or reduction. The increase that was made was by agreement and went into effect 1 April, 1923, advance of $1.50 over original contract making $10 per thousand fee. Defendant testified: “I demanded an increase before I got through because I needed it. I never • demanded any more, but we frequently talked about the advance in wages. I thought at the end of the job was the place to make final settlement.” ’We do not so construe the contract as to negotiating and agreeing. This should have been done as the radical changes took place in operation — like the agreement of raise 1 April, 1923. From the view we take of the entire record, defendant’s assignments of error cannot be sustained. They are not material from the construction we give to the contract. The court below, notwithstanding the fact defendant could read and write and knew fully what he was signing, and although no issue of fraud or mistake was tendered before the referee or in the Superior Court, allowed evidence to be introduced on these aspects, charged the jury clearly and ably on what constituted fraud and mistake, and gave the contentions of each side fairly and accurately. The court below, under the facts and circumstances of the case was more favorable to the defendant than he was, in law, entitled to under the contract. The jury found for the plaintiff. From the entire record, we can find no prejudicial or reversible error. No error.