Dunbar v. Tobacco Growers' Co-op. Ass'n

• Decision Date: 02 December 1925
• Docket Number: 371.
• Citation: 130 S.E. 505,190 N.C. 608
• Parties: DUNBAR v. TOBACCO GROWERS' CO-OP. ASS'N.
• Court: North Carolina Supreme Court

130 S.E. 505

190 N.C. 608

DUNBAR v. TOBACCO GROWERS' CO-OP. ASS'N.

No. 371.

Supreme Court of North Carolina

December 2, 1925

Appeal from Superior Court, Alleghany County; Cranmer, Judge.

Civil action by H. M. Dunbar against the Tobacco Growers' Co-operative Association to rescind or cancel contract for fraud alleged to have been practiced in its procurement. On denial of any fraud and counterclaim to recover damages for breach of contract, there was a verdict and judgment in favor of defendant, the plaintiff having been nonsuited at the close of his evidence, and plaintiff appeals. New trial.

Refusal to remand case to original county for failure to transfer papers not error, where motion not made until trial.

Folger & Folger, of Mt. Airy, for appellant.

Burgess & Joyner, of Raleigh, and Kenneth C. Royall, of Goldsboro for appellee.

STACY C.J.

The whole case pivots on the correctness of the involuntary nonsuit, entered at the close of plaintiff's evidence.

The plaintiff is an illiterate man, who can neither read nor write. He was induced to sign the paper writing, purporting to be a marketing contract between the parties, according to his allegation, upon the false and fraudulent representations of the defendant's agent as to its contents, among other things, to the effect that the defendant would pay to the plaintiff from 60 to 75 per cent. of the market value of his tobacco in cash upon delivery, and issue negotiable certificates or script for the remainder, payable within 60 or 90 days, and, further, that the United States government and the state of North Carolina were behind the defendant Association, and would guarantee its operations and obligations.

The plaintiff offered evidence tending to show his inability to read or write; that he asked to have the contract read at a meeting in the schoolhouse where others were signing similar contracts, but the defendant's agent stated it was too long, and he had already explained its meaning and provisions; that the defendant's agent assured the plaintiff he would be paid 75 per cent. of the cash value of his tobacco on delivery, and receive a certificate for the balance "as good as gold"; that the government had agreed to furnish the money to pay off the first advancement that, if plaintiff did not join then and pay his $3 membership fee, it would cost him $25 to join later when they had closed the books; that plaintiff, relying upon these representations, signed the contract at night by the light of a match without taking a copy, but during the next week, and on the day after he had heard the contract read, he went to defendant's agent and told him it did not contain the provisions as represented, and he wanted his name removed therefrom; that the agent said he would see about it, though he never did.

The plaintiff offered to show the falsity of the representations made by defendant's agent, but this was excluded upon the theory that the alleged representations were only promissory in character, and that they did not amount to such factual misrepresentations as are necessary to be shown in an action for fraud or deceit. Cash Register Co. v. Townsend, 137 N.C. 652, 50 S.E. 306, 70 L. R. A. 349; Colt v Kimball, 190 N.C. 169, 129 S.E. 406.

Viewing the evidence in its most favorable light for the plaintiff, the accepted position on a motion to nonsuit, we think it is sufficient to go to the jury on the question as to whether the minds of the parties ever fully met upon the contract as contained in the paper writing sought to be avoided. Furst v. Merritt, 190 N.C. 404, 130 S.E. 40.

Speaking to the sufficiency of a similar state of facts to avoid a contract, in Whitehurst v. Ins. Co., 149 N.C. at page 276, 62 S.E. 1068, Hoke, J., said:

"It is well recognized with us that, under certain conditions and circumstances, if a party to a bargain avers the existence of a material fact recklessly, or affirms its existence positively, when he is consciously ignorant whether it be true or false, he may be held responsible for a falsehood; and this doctrine is especially applicable when the parties to a bargain are not upon equal terms with reference to the representation, the one, for instance, being under a duty to investigate, and in a position to know the truth, and the other relying and having reasonable ground to rely upon the statements as importing verity"--citing authorities for the position.

To like effect are the decisions in Machine Co. v. Feezer, 152 N.C. 516, 67 S.E. 1004; Jones v. Ins. Co., 151 N.C. 54, 65 S.E. 602; May v. Loomis, 140 N.C. 358, 52 S.E. 728; and many others in our reports.

And as to responsibility attaching for such statements, when the parties are not on...