Cromwell v. . Logan and Logan v. . Mercantile Co.

ClaeksoN, J. It is tbe well settled rule of practice and tbe accepted position in tbis jurisdiction tbat, on a motion to nonsuit, tbe evidence wbicb makes for tbe plaintiff’s claim, and wbicb tends to support ber cause of action, wbetber offered by tbe plaintiff or elicited from tbe defendant’s witnesses, will be taken and considered in its most favorable light for tbe plaintiff, and sbe is “entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom.” Nash v. Royster, 189 N. C., at p. 410. Tbe jury only passed on tbe issue of actionable fraud, and we will consider alone tbis aspect. "Was there sufficient evidence to be submitted to tbe jury? We think not. Speaking to tbe subject of actionable fraud, in Leonard v. Power Co., 155 N. C., at p. 17, it is said: “It is true tbat a person who can do so is generally required to read a paper before signing it, and bis failure to do so is negligence for wbicb tbe law affords no redress. This rule does not apply, however, in case of positive fraud or false representation made by another party, by wbicb tbe person signing tbe paper is lulled into security or thrown off bis guard and prevented from reading it, and induced to rely upon such false representations or fraud.” Taylor v. Edmunds, 176 N. C., 328; Oil and Grease Co. v. Averett, 192 N. C., 465; Butler v. Fertilizer Works, 193 N. C., 632. We think tbe law above stated is well settled in tbis jurisdiction, but tbe facts in tbis case do not come within tbe principle above set forth. We think tbe law applicable as stated in Forbes v. Mill Co., 195 N. C., at p. 54-5, quoting from Colt v. Kimball, 190 N. C., at p. 172-3, Varser, J., speaking for tbe Court, citing a wealth of authorities, said: “ ‘Defendant’s testimony shows tbat be is a man of education and prominence, accustomed to tbe transaction of business, and of much experience, with more than an average education, who has served on tbe board of education for Yanee County for many years. It was bis duty, unless fraudulently prevented therefrom, to read tbe contract, or, in ease be was not able to read tbe fine print without stronger glasses, to have it read to him. Tbis rule does not tend to impeach tbat valuable principle wbicb commands us to treat each other as of good character, but rather *594 enforces along with it tbe salutary principle tbat each one must ‘mind bis own business’ and exercise due diligence to know wbat be is doing. Having executed tbe contract, and no fraud appearing in tbe procurement of tbe execution, tbe Court is without power to relieve tbe defendant on .tbe ground tbat be thought it contained provisions which it does not. He is concluded thereby to tbe same extent as if be bad known wbat due diligence would have informed him of, to wit, its plain provisions tbat tbe agent bad no authority to make agreements other than those contained therein, and tbat such agreements, if made, were not a part of tbe contract.’ Furst v. Merritt, 190 N. C., 397; Dunbar v. Growers, 190 N. C., 608; Hoggard v. Brown, 192 N. C., 494; Finance Co. v. McGaskill, 192 N. C., 557.” See Peyton v. Griffin, 195 N. C., 685. In Abel v. Dworsky, 195 N. C., p. 868, it is said: “There was other evidence tending to show ratification. If plaintiffs discovered tbe fraud and ratified tbe sale, they cannot now recover in this action. 12 R. C. L., p. 412; Darden v. Baker, 193 N. C., 386.” Sugg v. Credit Corp., ante, page 97. “One who has assumed or contracted for tbe payment of another’s debt may be sued directly by tbe creditor.” Glass Co. v. Fidelity Co., 193 N. C., at p. 772. Carl M. Logan and Ralph Beacbam were men of education and intelligent business men and in tbe real estate business together. Both testified that nothing was said at tbe time to prevent them from reading tbe deeds. (1) A deed was made to them by tbe Walnut Mercantile Company with tbe assumption of Allie A. Cromwell’s note. (2) After they bad purchased tbe stock they then made a deed back to tbe Walnut Mercantile Company with tbe assumption of Allie A. Cromwell’s note. They took both deeds to Marshall, N. C., and recorded them about ten days after tbe deal was made. Tbe deeds were dated 7 September, 1926. Tbe stock of merchandise was in tbe building tbat Allie A. Cromwell bad a second lien on. They ran tbe business about fifteen months. They purchased tbe business 7 September, 1926, and this $4,000 note was due 12 December, 1926, and tbe deed of trust could have been foreclosed at tbat time. 28 September, 1926, Carl M. Logan wrote Allie A. Cromwell (Ralph Beacbam testified, “I knew about tbe letter Logan wrote Mrs. Cromwell”) : “We would like to get you to extend your note one year, and we will start paying you $50 and interest each month for one year, and then pay all tbe balance December, 1927.” Ralph Beacbam testified, “Tbe attorney made no representations. Tbe attorney is a man of good character.” Other indicia of negligence and ratification: (1) By raising no question as to tbe personal liability until they were sued in tbe courts, and in tbe meantime having tbe deeds showing tbe assumption of Allie A. Cromwell’s debt. (2) By defendant Logan obtaining from one *595 Wilkins at personal cost to him, a release from the first mortgage against the real estate, which amounted to $14,000. (3) By attempting to pay the $4,000 note by the transfer and delivery to Allie A. Cromwell of certain promissory notes, payable over a period of twenty years, which were the personal property of the defendant, Logan, and in which the Walnut Mercantile Company had no interest whatsoever. On the entire record we think there is no sufficient evidence to sustain the verdict, and the motion for judgment as in ease of nonsuit should have been granted. For the reasons given the judgment is Reversed.