Breece v. Standard Oil Co.

Clarkson, J. The only question involved in this controversy is: Did the court below err in allowing the defendant’s motion for judgment upon the pleadings and the signing of the judgment as set out in the record? ~We think so. The plaintiff sets up actionable fraud or deceit to rescind the “Supplemental Agreement of D. J. Breece and C. H. Farrell.” The allegations of plaintiff in this respect fully comply with the rule as to the necessary *530 averments or ingredients of fraud to rescind a contract. Corley Co. v. Griggs, 192 N. C., 171; Stone v. Doctors' Lake Milling Co., 192 N. C., 585. In Belk’s Dept. Store v. Ins. Co., 208 N. C., 267 (270), is the following : “It is well settled that where the contract is not ambiguous, the construction is a matter of law for the courts to determine. Courts will generally adopt a party’s construction of a contract. Attendant circumstances, party’s relations and object in view should be considered, if necessary, in interpreting a written contract. Neither court nor jury may disregard a contract expressed in plain and unambiguous language. The court’s province is to construe, not make contracts for parties, and courts cannot relieve a party from a contract because it is a hard one. An agent can, under certain circumstances, contract for the principal.” We see no ambiguity in the supplemental agreement. The language is plain and clear. The only relief is actionable fraud or deceit to rescind it, which is made in plaintiff’s reply. The allegations in plaintiff’s reply setting forth the fraud is well pleaded. Whether on a trial it can be substantiated is another question. In Colt v. Kimball, 190 N. C., 169 (172-3), written by Varser, J., in an able opinion, we find: “It is defendant’s duty to read the contract, or have it read to him, and his failure to do so, in the absence of fraud, is negligence, for which the law affords no redress. The defendant’s duty to read or have read to him the contract is a positive duty of which he is not relieved, except in cases of fraud (citing numerous authorities). Therefore, it was error to admit the evidence over plaintiff’s objection. Farquhar Co. v. Hardware Co., 174 N. C., 369; Moffitt v. Maness, 102 N. C., 457; Murray Co. v. Broadway, 176 N. C., 151. This principle lies at the very foundation of all contracts. Its violation, if permitted by the courts, would strike down one of the safeguards of commercial dealing. The resultant injury would be far reaching. The integrity of contracts demands its universal enforcement. Potato Co. v. Jenette, 172 N. C., 3. Defendant’s testimony shows that he is a man of education and prominence, accustomed to the transaction of business, and of much experience, with more than an average education; who has served on the board of education for Vance County for many years. It was his duty, unless fraudulently prevented therefrom, to read the contract, or, in case he was not able to read the fine print without stronger glasses, to have it read to him. This rule does not tend to impeach that valuable principle which commands us to treat each other as of good character, but rather enforces along with it, the salutary principle that each one must ‘mind his own business’ and exercise due diligence to know what he is doing.” This matter is further discussed,. citing authorities, in Oil and Grease Co. v. Averett, 192 N. C., 465; Oliver v. Hecht, 207 N. C., 481. *531 In Dorrity v. Building & Loan Assn., 204 N. C., 698 (701), the negligence that would bar a recovery is thus stated: “(1) Where the person signing the agreement was illiterate or otherwise incapable of understanding the writing; (2) where there is positive misrepresentation of contents of the paper writing of such type and character as to deceive a person of ordinary prudence and the person signing such agreement reasonably relied upon such misrepresentation; (3) where the party procuring the signature resorted to some device; scheme, subterfuge, trick, or other means of preventing or interfering with the reading of the paper or reasonably tending to throw a person of ordinary prudence off guard.” Dallas v. Wagner, 204 N. C., 517; Mitchell v. Strickland, 207 N. C., 141; Bank v. Dardine, 207 N. C., 509. We think, on the allegations of plaintiff in his reply setting up fraud, his exceptions and assignments of error are well taken. Eor the reasons given, the judgment is Reversed.