Georgia Cotton Growers Co-operative Ass'n v. Smith

Atkinson, J. The oral demurrer to the several paragraphs of the answer was upon the ground that they failed to set up a legal defense to the action or any legal reason why plaintiff should not recover in the action. The assignment of error is upon the judgment refusing to strike paragraphs fifteen to twenty-one, inclusive. Do these paragraphs when considered together set up a' valid defense to the action? They do if they allege such fraud in the procurement of the paper sued upon as would prevent it from becoming a binding contract upon the defendant. In Chapman v. Atlanta Guano Co., 91 Ga. 821 (18 S. E. 41), involving fraud in [767] the procurement of a promissory note, a plea setting up the fraud was held sufficient which alleged that the agent of the payee represented that the note was for a stated sum when in fact it was for a larger sum, and that the note was made at night when defendant could not see very well and could not see the amount, but, relying on and having confidence in the agent, defendant signed the note. In the opinion it was said: “The pleas, in effect, state that the plaintiff’s agent represented the note to be for $53.10, while in point of fact it turned out to be a note for $90.20. This was not a matter for a mere difference of opinion. If the pleas speak the truth, the plaintiff’s agent perpetrated a palpable fraud upon the defendants, involving nothing short of actual dishonesty. . . In the case at bar [upon the question of diligence] one of the pleas alleges that the note was signed at night, when defendant signing the same could not well see; and another avers that the note was made at night, when defendant could not see the amount. These allegations, it is true, are not strong. They do not show that a light might not easily have been obtained if the defendant had desired it; or that there was any haste about the transaction; or that the plaintiff’s agent urged or requested an immediate execution of the note, or did anything, except the making of the representations complained of, to prevent the defendant from fully informing himself of the amount set forth in the note. Still, we think the pleas contain enough to authorize the case to be submitted to a jury, and allow them to determine whether or not a fraud was actually practiced upon the defendant.” This decision was followed in Wood v. Cincinnati Safe &c. Co., 96 Ga. 120 (22 S. E. 909), sustaining a plea which set up fraud of an agent of a vendor, in misrepresenting the contents of a written order for a safe, and urging the vendee to sign the paper without reading it, in order to enable the agent to catch a train that was about to arrive. Both of the foregoing and other cases were discussed and distinguished in Walton Guano Co. v. Copelan, 112 Ga. 319 (37 S. E. 411, 52 L. R. A. 268), relating to fraud in procuring a promissory note; this court holding that the evidence was insufficient to support the defendant’s plea of fraud. In the opinion it was said: “In the present case there were no misrepresentations made by the agent of the plaintiff at the time the note was signed. There was no trick or device by which the defendant [768] was induced to sign the paper. He had full opportunity to read the same, and nothing done by the plaintiff’s agent prevented him from doing so. Nor was there any emergency which required haste, though an emergency of the defendant’s own creation would, of course, not have availed him as a defense. The only excuse offered by him for not reading the note was that he relied upon the agent of the plaintiff to have the note drawn in accordance with the prior agreement made with him. If the defendant has signed a contract which does not express the terms of the agreement entered into between him and the plaintiff, this is due to his own gross negligence in failing to use the precautions which an ordinarily prudent man would have taken advantage of; and the courts will give him no relief; he must abide by the contract as executed.” The same doctrine was announced in Jossey v. Georgia Southern &c. Ry. Co., 109 Ga. 439 (34 S. E. 664), involving a contract releasing the railroad company from liability for a personal injury alleged to have been caused by the latter’s negligence; and in Rounsaville v. Leonard Manufacturing Co., 127 Ga. 735 (56 S. E. 1030), involving a written order for goods. Paragraphs 15 to 18, inclusive, of the answer in the present case, which the trial judge refused to strike, state the substance of several material representations alleged to have been made by the agent, which were at variance with the provisions of the paper which the defendant signed. After setting these out, it is stated in paragraph 19: "After Johnson [the agent] had represented to defendant that there was nothing in the paper which he signed to the contrary of which is set out herein, and after his further agreement to hold same until defendant directed him to send it in, and relying upon said representations, this defendant agreed to the said Johnson that he would sign said paper offered to him by Johnson, and signed it believing that he could rely on what Johnson had told him.” This allegation, as against a general demurrer, was a sufficient statement that the agent misrepresented the contents of the paper that was signed. Other allegations to the effect that the defendant did not have his glasses and could not read without them, and that the agent in order to induce his signature promised to afford him the opportunity to read the paper and take counsel as to its meaning before sending it on to the association, and return it to him if it was not satisfactory, were sufficient, un [769] der the ruling in Chapman v. Atlanta Guano Co., supra, to relieve the defendant from the charge of negligence in signing the paper without reading it. It is urged by the plaintiff that, the paper having been “delivered” to the agent of the association, the contract was complete, and the defendant would not be heard to set up that the delivery was conditional. This position is untenable. The paper contains mutual obligations, and shows upon its face that it was intended to be signed by both parties. At the time of the so-called “delivery” to the agent it was signed only by the defendant, and was not a completed contract. Clarke v. McNatt, 132 Ga. 610 (1 a) (64 S. E. 795, 26 L. R. A. (N. S.) 585). The case differs from Smith v. Georgia Railroad &c. Co., 131 Ga. 470 (62 S. E. 673), which referred to a complete contract. Even in the case of a completely formal contract of insurance it was held, in Moore v. Farmers Mutual Insurance Asso., 107 Ga. 199 (33 S. E. 65) : “It is competent and lawful for an insurance company, in defense to an action upon a fire policy purporting to have been issued by it, to plead that the same was never in fact delivered, but merely handed to the person therein named as the insured, under an agreement that it was not to become binding upon the company until he had canceled another policy in a different company insuring the same property, which was never in fact done; and parol evidence is admissible to prove a plea of this kind.” It would be a fraud for the agent to obtain the defendant’s signature and possession of the paper under promise to hold it and afford the defendant opportunity to read and take counsel as to its meaning, and to take back the paper if he did not like the contract, and then, without complying with such promise, forward it to the association to enable it to sign the paper and enforce it as a complete formal contract. The trial judge did not err in overruling the demurrer. The rulings announced in the headnotes other than the- first do not require elaboration. Judgment affirmed. All the Justices concur.