Dellinger v. Gillespie

• Decision Date: 29 April 1896
• Citation: 118 N.C. 737,24 S.E. 538
• Parties: DELLINGER. v. GILLESPIE.
• Court: North Carolina Supreme Court

24 S.E. 538

118 N.C. 737

DELLINGER.

v.GILLESPIE.

Supreme Court of North Carolina.

April 29, 1896.

Parol Evidence—Mistake—Negligence—Fraud —Waiver.

1. Negligence of a party to a written contract in voluntarily signing, without reading, the contract, no fraud being shown, prevents him from contradicting its terms by parol evidence.

2. In an action for the contract price for the erection of lightning rods upon a house, defendant claimed that his signature to the written contract was procured by fraud, and that the writing did not express the correct terms of the contract. It appeared that, before the work was commenced, defendant read the contract, stated that it was not correct, but did not object to the work being done, or express an intention to sue in damages for the alleged fraud. Held, that he waived the fraud.

Appeal from superior court, Mecklenburg county; Bryan, Judge.

Action by U. G. Dellinger against W. A. Gillespie. There was a judgment for defendant, and plaintiff appeals. Reversed.

The order referred to in the opinion was as follows: "Mr. U. G. Dellinger—Sir: Erect (or deliver) at your earliest convenience, on my residence, a system of circuit conductors (5 points and 3 rods to the ground) of the Star lightning rod, in a proper and substantial manner, in accordance with scientific rules; and I will pay for the same on completion of work in cash or note, due on completion, at the rate of 47 1/2 cents per foot for the rod, $3.50 for each. point, and price of five feet of rod for each galvanized brace; $5.00 for each horse, rooster, or points of compass; $4.00 for each arrow; and $3.00 for each ball. It is expressly understood by the signer of this order that he signs the same upon his own judgment, after due deliberation by him, without any undue influence having been used or reprc-sentations made by any agent other than written or printed on this order. Dated July 10, 1895. W. A. Gillespie."

McCall & Nixon, for appellant.

C. Dowd and Jones & Tillett for appellee.

MONTGOMERY, J. The defendant executed the order to the plaintiff which is set out in the case on appeal. The order was signed by the defendant simultaneously with the making of the contract whatever the contract was. The defendant could read and write, and he signed the paper, according to his own testimony, voluntarily. The plaintiff made no attempt to conceal any of its provisions, handed it to him to read, practiced no trick or surprise on him to induce him to execute it and, as a matter of fact the defendant commenced to read it. He said, as a witness for himself on the trial, that "he [plaintiff] pulled out the paper, and showed it to me. * * * Then I signed the paper. I didn't hardly get the first line. I saw the figure '3, ' and thought it was 3 rods for the house. I asked if he would put it up to-day, and he sa...