Beck & Pauli Lithographing Co. v. Houppert

• Decision Date: 15 November 1894
• Parties: BECK & PAULI LITHOGRAPHING CO. v. HOUPPERT ET AL.
• Court: Alabama Supreme Court

16 So. 522

104 Ala. 503

BECK & PAULI LITHOGRAPHING CO. v. HOUPPERT ET AL.

Supreme Court of Alabama

November 15, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by the Beck & Pauli Lithographing Company against Houppert &amp Worcester for goods sold under a written contract, and for damages for breach of contract. Judgment was rendered for defendants, and plaintiff appeals. Reversed.

The complaint contains eight counts, the first being on an itemized, sworn account; the second, third, and fourth, on the common counts; the fifth, sixth, and seventh, special counts for the breach of said contract; and the eighth count was framed specially to recover, as damages, the profits that plaintiff would have made out of the contract. To the several counts of the complaint, the defendant filed several pleas. To two of these special pleas the plaintiff demurred on the grounds (1) that said pleas show on their faces that defendants were negligent in not reading over said contract before they executed the same; (2) because it is not alleged in said pleas that the defendants, at the time of the execution of said contract, were illiterate, and unable to read the same. These demurrers were overruled.

Mountjoy & Tomlinson and Tarrant & Kronshage, for appellant.

R. H Pearson, for appellees.

COLEMAN J.

The complaint contains several counts, some of which are in the common form, and others upon a breach of a special agreement. The defendants pleaded the general issue, and several special pleas. The only assignments of error which arise upon the pleadings are to the ruling of the court, overruling plaintiff's demurrer to two pleas filed on the 9th of October, 1893. These two pleas were intended to answer the counts of the complaint based upon an alleged breach of a written agreement, and aver as a defense that the execution of the written agreement was procured by fraud. It is well settled that a person who signs an instrument without reading it, when he can read, cannot, in the absence of fraud deceit, or misrepresentation, avoid the effect of his signature, because not informed of its contents; and the same rule would apply to one who cannot read, if he neglects to have it read, or to inquire as to its contents. In such case ignorance of the contents is attributable to the party's own negligence. Goetter v. Pickett, 61 Ala. 387; Guano Co. v. Anglin, 82 Ala. 492, 1 So. 852; Watts v. Burnett,

56 Ala. 340; Cannon v Lindsey, 85 Ala. 202, 3 So. 676; Jones v. Railroad Co., 89 Ala. 376, 8 So. 61; Sheldon v. Carter, 90 Ala. 380, 8 So. 63. In these cases it was held that the ignorance of the party was attributable to his negligence in not reading the instrument, or in not making proper inquiry of its contents, and where there is an absence of fraud, deceit, of misrepresentation. But the rule is otherwise where its execution is obtained by a misrepresentation of its contents; the party signing a paper he did not know he was signing, and did not really intend to sign. It is immaterial, in the latter aspect of the case, that the party signing had an opportunity to read the paper, for he may have been prevented from doing so by the very fact that he trusted to the truth of the representation...