Constantine v. McDonald

Citation25 Idaho 342,137 P. 531
PartiesCLEMENTO CONSTANTINE et al., Respondents, v. H. M. McDONALD, Appellant
Decision Date20 December 1913
CourtUnited States State Supreme Court of Idaho

CONTRACT-CONSTRUCTION OF - FAILURE TO READ - EVIDENCE - SUFFICIENCY OF - VERDICT.

1. Where a party enters into a written contract in a language that he cannot read, it is as much his duty to procure some person to read and explain it to him before he signs it as it would be for him to read it before he signed it if he were able to read it, and his failure to obtain a reading and explanation of it before signing is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.

2. Held, that the evidence does not show that there was any fraud practiced upon plaintiffs in the making of said contract.

3. Held, that the evidence is not sufficient to sustain the verdict of the jury.

APPEAL from the District Court of the First Judicial District in and for Shoshone County. Hon. W. W. Woods, Judge.

Action to recover for excavating earth and rock. Judgment for plaintiffs. Reversed.

Judgment reversed, with costs in favor of the appellant. Petition for rehearing denied.

Therrett Towles and G. W. Korte, for Appellant.

"If a person cannot read the language in which a contract is written, it is as much his duty to procure some person to read and explain it to him before he signs it as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents." (9 Cyc 390; Boagni v. Fouchy, 26 La. Ann. 594.)

Even if its terms differ from the contract as agreed on verbally. (Hawkins v. Hawkins, 50 Cal. 558.)

If he signs it without asking to have it read or explained to him he is bound by it and cannot escape the obligations imposed by it by pleading his illiteracy or imperfect understanding of the English language, no fraud having been practiced. (Appeal of Weller, 103 Pa. 594; Chicago St. P. M. & O Ry. Co. v. Belliwith, 83 F. 437, 28 C. C. A. 358; Mulderrig v. Burkee, 53 N.Y.S. 1004, 24 Misc. 716; Fulton v. Messenger, 61 W.Va. 477, 56 S.E. 830; Mitchell Mfg. Co. v. Kempner & Bro., 84 Ark. 349, 105 S.W. 880; Haag v. Burns, 22 S.D. 51, 115 N.W. 104; Atlas Shoe Co. v. Bloom, 209 Mass. 563, 95 N.E. 952; Sanden v. Northern P. Ry. Co., 43 Mont. 209, 115 P. 408, 34 L. R. A., N. S., 711; Huber Mfg. Co. v. Piersall, 150 Ky. 307, 150 S.W. 341.)

A written contract is the highest evidence of the terms of the agreement between the parties, and every contracting party must learn and know the contents of the writing before he signs and delivers it. (Teachout v. Clough, 143 Mo.App. 474, 127 S.W. 672.)

A. G. Kerns, for Respondents, cites no authorities.

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover a balance due upon an alleged verbal agreement for the excavation of certain rock and earth along the line of the C. M. & St. P. Ry. Co. in Shoshone county.

The action was tried by the court with a jury and verdict and judgment were given and entered in favor of the respondents for the sum of $ 1,272.55 and costs of suit. A motion for a new trial was denied and this appeal is from the judgment and order denying the new trial.

Several errors are assigned but the main question in dispute was whether or not the agreed price for the excavation of rock and earth was to be paid upon measurements in excavations only or in solid beds or masses of rock in its original position in the ground, or whether it was to be measured in loose formation in cars, as claimed by the respondents.

The evidence clearly shows that the respondents in this case made and entered into a written agreement on or about May 1, 1912. The respondents were Italians and claimed they could not read the written contract. The testimony shows that the leader of these Italians had a copy of said contract two or three days before he signed it; that he was able to testify in this case without...

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14 cases
  • Milner v. Earl Fruit Co. of Northwest
    • United States
    • Idaho Supreme Court
    • January 2, 1925
    ...contract or have the same read to him, or to otherwise inform himself as to the nature, terms and conditions thereof. ( Constantine v. McDonald, 25 Idaho 342, 137 P. 531; Price v. Shay, 110 Kan. 351, 203 P. 1105; 6 R. L., p. 624, sec. 43; 13 C. J., p. 370, sec. 249.) The general rule of law......
  • Watkins v. Mountain Home Co-operative Irrigation Co.
    • United States
    • Idaho Supreme Court
    • April 2, 1921
    ...20 Idaho 619, 119 P. 465; Furey v. Taylor, 22 Idaho 605, 127 P. 676; McDonnell v. Jones, 25 Idaho 551, 138 P. 1123; Constantine v. McDonald, 25 Idaho 342, 137 P. 531; McLean v. Hayden Creek Min. & Mill Co., 25 416, 138 P. 331; State v. Trego, 25 Idaho 625, 138 P. 1124; Wolter v. Dixon, 29 I......
  • Smith v. Swendsen
    • United States
    • Idaho Supreme Court
    • May 14, 1937
    ...it was read, understood, and assented to. (Fivey v. Pennsylvania R. Co., 67 N. J. L. 627, 52 A. 472, 91 Am. St. 445; Constantine v. McDonald, 25 Idaho 342, 137 P. 531; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. Hampton v. Lee, 49 Idaho 16, 285 P. 1023; 49 Idaho 22, 287 P. 205.) In Milne......
  • Cristo Viene Pentecostal Church v. Paz
    • United States
    • Idaho Supreme Court
    • May 24, 2007
    ...to signing, nor will it allow him to avoid the contract's terms on the ground that he did not understand them.2 Constantine v. McDonald, 25 Idaho 342, 344, 137 P. 531, 531 (1913) (a person who cannot read the language in which a contract is written has a duty to procure someone to read and ......
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