Goetter, Weil & Co. v. Pickett

BRICKELL, C. J. 1. The statute contemplates that in suits upon instruments in which exemptions are waived, the fact of waiver shall be averred by the plaintiff, and the defendant may, if he does not contradict the existence of the' debt, limit his contestation to the fact of such waiver. — Code of 1876, § 2849. The general rule of pleading at common law, was, that a plea in bar professing in its commencement to answer the whole declaration, was bar on demurrer, if its matter was an answer to a part only of the plaintiff's cause of action. — 1 Chit. PL 523. The statute conferring on a defendant the right of contesting only the fact of waiver of exemptions, when that is expressed in the instrument on which suit is founded, modifies the rule. If his plea or contestation is limited alone to the fact of the waiver — to a denial of the averment in the complaint of the waiver — it is an answer to that averment only; and if it is sustained the only consequence is, that the judgment rendered will not contain a recital of the fact of waiver, though it may be for the debt or demand claimed, and process issuing on it would not authorize a levy and sale of the property exempt. The plea in the present case, is on a proper construction, properly framed so as to put in contr'oversy, no other averment of the complaint, than the waiver of exemptions. It limits the contestation to that fact, and the statute in express terms confers the right of contestation to that extent. Finding that plea true, could not have deprived the plaintiffs of a judgment for the debt and costs, and we do not think it was obnoxious to the demurrer interposed. 2. The remaining question is presented by the bill of' exceptions, and is confined to the single inquiry, whether it was competent for the defendant in support of the plea denying the waiver of exemptions, to prove that he did not read the note, at the time of signing it. The evidence without conflict showed that he could read and write, and that he ■ had ample opportunity of reading the note before signing it, and that he did read it so far as to ascertain its amount. There was no misrepresentation to him of the contents of the • note, and if he has executed an instrument, he did not intend executing, his own negligence without any fraud or deceit of the party with whom he was dealing, is the cause. The fact that he did not read it, haviug full opportunity to do so,.. 391 simply proves his negligence and inattention to his own interests, and in the absence of all misrepresentation or artifice by the party with whom he was dealing, was immaterial and irrelevant. A party who having full capacity and opportunity to read a paper, and to whom there is no misrepresentation of its contents, can not set up his own want of attention — his failure to read it, as a fact to invalidate it. Hawkins v. Hudson, 45 Ala. 482; Hallenbeck v. Dewitt, 2 Johns. 404; Greenfield’s Estate, 14 Penn. St. 489; 2 Whart. Ev. § 932. The judgment is reversed and the cause remanded.