Bates v. Harte

SHARPE, J. — Under section 2723 of the Code one doing work upon or furnishing materials for “any building or improvement upon land,” is given a lien to be perfected in the manner prescribed, upon the building or improvement and on the land on which the same is situated, ,-to an extent limited by the same section. The statute recognizes that improvements meriting the protection of a lien may be made upon land otherwise than by buildings, but as they may occur in unforeseen variety the scope of the term improvement is left for determination in particular cases as they may arise. It is well known that a supply of water is often one of the most convenient and useful of all appurtenances to land. Its- development by means of drilling and casing a well may greatly enhance the permanent value of the land. We, therefore, hold that a ivell designed and made for a permanent supply of water is an improvement upon land within the meaning of the statute referred to. Hoppes v. Baie, 105 Iowa 648 (75 N. W. Rep. 495). This conclusion disposes of the first three assignments of error. The lack of attestation to defendant’s mark on the contract was not ground for excluding the writing or any part of it. Now, as at common law, such an instrument may be signed by mark only. The contract is not one which the statute requires to be signed and, therefore, the statutory definition of signature as including mark when witnessed by a person writing his name as a witness does not apply. — Beckley v. Keenan & Co., 60 Ala. 293. Under the evidence both that part of the contract signed by the plaintiff and that part signed by the defendant were admissible. It ivas only because of defendant’s ill-founded objection that both parts were not ad431 mi tied, and he cannot complain if his own action resulted in the admission of one part to the exclusion of the other. One who has signed a contract in negligent ignorance of its contents cannot, in the absence of fraud or misrepresentation, set up such ignorance in avoidance of the obligation. If he cannot read, due care for his own interest requires that he should have it read to him. Jones v. Cin., Selma & Mobile R. Co., 89 Ala. 376. If, however, his signature to the instrument without knoAvledge of its contents has been induced by misrepresentations concerning same made by the opposite party, the fraud involved in such misrepresentations Avill furnish a defense to an action based upon the purported undertaking. — Davis v. Snider, 70 Ala. 315; Foster v. Johnson, 70 Ala. 249; Gannon v. Lindsay, 85 Ala. 198. The defendant’s evidence tended to show that before the writing Avas drawn there Avas a verbal contract materially different from that expressed by the Avriting. By the verbal agreement he sets up that the drilling. Avas to be paid for at $1.50 per foot in rock instead of $2 as by the Avriting, and the drilling was to continue until a sufficient supply of Avater Avas obtained, as to which the writing was silent. It further tends to show that Avithout any change of those terms, the plaintiff handed the defendant the Avriting to sign and without reading it told him it Avas the contract they had made for boring the Avell; whereup'.n, without other information of its contents and Avithout being able to read it, the defendant signed the Avriting by mark. From such representations if made, the defendant might well have been misled into the belief that the Avriting was according to the previous agreement as stated by him. By the plaintiff’s testimony the Avriting Avas realU in accordance Avitli- the previous agreement, and he also says it was read; but this conflict in eAddence presented a question of fact Avhich should have been submitted to the jury under appropriate instructions. The giving of the affirmative charge for the plaintiff Avas, therefore, error. It Avas open to the jury if they found- the Avriting not binding as a contract upon the defendant, to also accept the defendant’s version of the contract. Under the agree432 merit as lie states it, the plaintiff could not rightfully have abandoned the 'well before reaching sufficient Avater unless for the defendant’s fault, of Avhich there is no evidence. Therefore, charges 2 and 3 and 6 requested by defendant should have been given. The remaining charges requested by him Avere properly refused. By the contract, if it was as expressed in the AArriting and as the jury might have found it, the plaintiff did not stipulate to continue the work until the completion of the wel-1 or until sufficient water was obtained. Charges 1, 4, 5 and 7 each ignore that consideration. Charge one is also bad in assuming the well Avas not completed, there being conflicting eAndence as to that fact. Reversed and remanded.