Strong v. Linington

MoAllisteb, CP. J. This case was submitted to us for decision at the last term of this court; and the conclusion then reached was that there was error in the first instruction given for appellee, for which the judgment below should be reversed; and that judgment was accordingly entered. Upon petition a rehearing was granted, and the cause has been re-argued by counsel for the respective parties, and has been carefully reconsidered by the court. ■ The first objection which appellant’s counsel urge to the judgment below is, that the defense relied upon, and which prevailed there, was not admissible under the plea of nonassumpsit, but should have been specially pleaded. We are satisfied from our own researches, beyond doubt that the objection is groundless. The instrument sued upon being under seal, at common law, the only actions which would lie upon it would be debt or covenant. It being for the performance of covenants, the latter would be the only appropriate action. But by our statute, assumpsit may be brought. There can be no doubt that the plea of non-assumpsit duly verified, puts in issue the execution of the instrument sued on, to the same extent that the plea of non est factum did in actions of covenant at common law. Assumpsit being now allowable by statute upon sealed instruments containing covenants, the plea of the general issue, especially if verified, will not only operate to put in issue the execution of the instrument, but also the breaches assigned; whereas, the plea of non est factum inactions of covenant put in issue only, the making of the instrument; and assignments of breaches were admitted, unless traversed by other pleas. So that non-assumpsit is a much broader plea than non est factum. The defense relied upon below, was not an attempt to impeach the deed for fraud in the matter or consideration of it, but for fraud in the execution of it. The distinction is this : under the plea of non est factum, the defendant may give in evidence whatever tends to show an invalid or defective execution of a deed at the time of plea pleaded; but whatever impeaches the deed by reason of the matter or consideration thereof, whether such matter or consideration renders the deed void by the policy of the common law, or by the express provisions of statute law, must be specially pleaded. Whelpdale’s Case, 5 Coke, 1,196 note c; Comyns’ Dig. Pleader, 2 w. 18; Pigot’s Case 11, Coke 27; 1 Chit. Pl. 483. It may be shown under non estfactum that a different instrument was substituted in the place of the one which the defendant supposed he was executing. Van Valkenburg v. Rouk 12 Johns. 337; Taylor v. King, 7 Munf. 358; Gove v. Wooster, Hill & Denio Supp. N. Y. 30. Between original parties to the instrument the defense is good at common lawr, and therefore need not be specially pleaded. But upon a careful reconsideration of this ease, we are of the opinion that both of the instructions given for defendant below are, under the circumstances in evidence, erroneous. The defendant is not illiterate. He could read, and he had an opportunity to read the instruments in question before signing, but did not, as he claims. The general doctrine of the law is stated by Blaelistone thus: I proceed now to the fifth requisite for making a good deed, the reading of it. This is necessary wherever any of the parties desire it; and if it be not done on his request the deed is void as to him. If he can he should read it himself; if he be blind or illiterate another must read it to him. If it be read falsely it will be void, at least for so much as is misreeited, unless it be agreed by collusion that the deed shall be read false, on purpose to make it void; for in such case it shall bind the fraudulent party. 2 Bl. Com. 304; Comyns’ Dig. Tit. Fait. B. 2; Upton v. Tribilcock, 1 Otto, 45. There is no doubt of the general rule, that if a party signing an instrument can read, it is his duty to read such instrument before signing; and if he does not, and is not prevented by any fraudulent means, he cannot be permitted to say when called upon to respond to its obligation, that he did not know what it contained. But from the defendant’s stand-point, and the facts which his evidence tended to prove, this is not the case of one who can read, and merely fails to read the instrument he has signed, and then seeks to avoid responsibility under it because he did not know what it contained. "According to the tendency of the evidence of defendant, here were terms of a contract agreed upon by parol, and then he has his attorney embody that agreement in a draft upon paper; the plaintiffs take that draft to have copies made for execution, and then get defendant’s permission to make a single alteration, which affected only the plaintiffs as between themselves. They return with what purports to be such copies, and represent to defendant, that they are copies of the draft which they so took to copy, with the exception of the alteration above mentioned, which was a matter wholly immaterial as to defendant. The defendant glances at the copies enough to identify the subject-matter, and signs without reading. It turns out that there are two material alterations from such draft embodied into the papers represented to be copies, besides the change they were authorized to make. It is true, that defendant could have read these papers before he signed them, and it was his duty to do so. But at the same time it was for the jury to determine whether as a matter of fact, the plaintiffs, or either of them, made the representations which defendant claimed they did ; whether from all the circumstances, they were fraudulent, and intended by plaintiffs to prevent the defendant from reading the papers, and whether they had that effect. We do not regard it either law or common sense, that a° man who can read and fails to read an instrument which he signs, must, under all circumstances, have negligence imputed, which would deprive him of the defense here set up. For fraud assumes such a variety of forms as to set all systematic classification of its victims at utter defiance. So that this defense is not necessarily limited to the illiterate, the blind, or those unacquainted with our language. Each case depends upon its own circumstances. Cooley on Torts, 491. The law is comprehensively stated by Mr. Justice Byles, in Foster v. McKinnon, 38 L. J. Rep. N. S. 310, and cited in Leach v. Nichols, 55 Ills. 276. He said: “It seems plain on principle and on authority that if a blind man, or a man who cannot read, or a man who for some reason (not implying negligence) forbears tovread, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs, then at least, if there be no negligence, the signature so obtained is of no force, and it is invalid, not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law, never did sign the contract to which his name is appended.” How, to bring a case within the range of the principle embodied in that statement of the law, it is not absolutely indispensable that the signer should he either illiterate or blind, or that the instrument should be falsely read over to him. Each of those conditions may have its equivalent in circumstances; that is, the signer may not be illiterate or blind, bnt be prevented from reading by some trick or artifice designed and calculated by the other party to have that effect. And the pretense of making a copy of a draft of an agreement, and the surreptitious interpolation of material alterations in favor of the party making such copy, with a direct affirmation, or even a circumstantial representation, that it was a faithful copy, might be equivalent to the falsely reading a paper which the person misreading held in his hand. So that, in our opinion, the essence of the defense below, consisted in the surreptitious interpolation of the clauses in favor of plaintiffs; the false representation that the paper was a copy of the draft, with the exception of the alteration plaintiffs were authorized to make, with the further condition that defendant relied upon such false representation, and was thereby and without negligence on his part induced to sign said instrument without reading, he at the the time not knowing that such alterations had been made. Except as to the.latter, neither of the above hypotheses is contained in the first instruction given for defendant. Indeed, it does not embrace the hypothesis that plaintiffs fraudulently concealed the changes, or either of them, or anything by way of excusing defendant’s neglect to read the instrument. The second instruction is too broad, and might extend to matters pertaining to the consideration, as testimony was given on defendants behalf that plaintiffs had no patent right for the Canadas. Besides, it leaves it to the jury to determine what were material matters. If only the changes were meant, then it was a question of law as to whether they were material or not. If matters beyond that were intended, then it was beyond the scope of what was allowable under the plea. The judgment must be reversed and the cause remanded. Reversed and remanded.