Wheeler & Wilson Manufacturing Co. v. Long

McAllister, P. J. We are of opinion, after careful consideration of the evidence, that the verdict in this case is manifestly against the weight and preponderance of the evidence, and the court below should have set it aside for that reason, if for no other. We are also of opinion that the first instruction for defendant was wrong. From the whole testimony it appears that defendant exchanged her old sewing machine for a new one. She executed a bill of sale of the old one, and an instrument in the nature of a lease or bailment, of the new one. Her signature was proved and these papers introduced in evidence by plaintiff. Being both made at the same time and touching the same transaction, they should be construed as one instrument or agreement; and as such they covered the whole subject-matter, and if valid, afforded the only test as to the rights of the parties. It was, of course, competent for defendant to defeat the written agreement by showing that her signature to it was obtained by fraud and circumvention, so as to render it ab initio void, or that it was rescinded by mutual consent of the parties to it after it was made. The instruction however contains no such hypothesis, and was for that reason erroneous. We think the second instruction was also improper. It is in effect, that if defendant was induced by the agent of the plaintiff to sign the lease in question for the machine upon the representation that it contained the agreement as testified to by her, then the jury should disregard such lease, etc. It appeared in evidence that defendant on two former occasions had dealt with plaintiffs for machines, under this same leasing plan. She testified that she knew the instrument in question was a lease when she signed. She could read and write. She did not read this, or ask to have it read to her. And there is no testimony that any body represented to her that the paper contained any terms or provisions which it does not contain. There was nothing on the question of fraud in obtaining the execution of the instrument to submit to the jury. When a person is not illiterate, blind, or unacquainted with our language, it will not do to submit the validity of a written instrument to a jury upon such hypotheses as those in the instruction under consideration. Even an illiterate person will be bound if he execute without requiring the instrument to bo read. Thoroughgood’s case, 2 Coke, 9. Where one can read but does not, then to avoid the instrument he must show some artifice or trick by which he was prevented, or in other words, the jury must be satisfied that the signature was obtained by fraud without negligence on the part of the signer. «Strong et al v. Linington, decided at this term. The judgment must ho reversed and the cause remanded. Reversed and remanded.