Farlow v. Chambers
| Decision Date | 03 January 1907 |
| Citation | 110 N.W. 94,21 S.D. 128 |
| Parties | FARLOW v. CHAMBERS. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County.
Action by Edgar J. Farlow against W. H. Chambers. From a judgment in favor of defendant, plaintiff appeals. Reversed. New trial ordered.
Charles W. Brown and James Boyd, for appellant.
Schrader & Lewis, for respondent.
The validity of the following contract which, upon conflicting testimony, the jury found respondent signed without reading is the ultimate question presented by this appeal Though controverted in every material respect by evidence consistent with the theory that respondent agreed to pay appellant a commission of $1,250 for securing an option to purchase the property above mentioned for $35,000, there was testimony tending to show that, prior to the execution of the written contract, the parties had been negotiating for the procurement of such an option, and had arrived at an agreement by the terms of which appellant, a director and stockholder of the company, was to secure for respondent, from the corporation, an option to purchase its entire capital stock of 40,000 shares for $35,000, and, upon condition that respondent thereafter elected to exercise his privilege of purchasing the property, appellant was to be paid par for his 10,000 shares of stock. Respondent testified to the effect that the contract was written in his presence by appellant, who informed him that it was the same as the oral agreement and that appellant was to receive par for his stock, if respondent took up the option, and that he signed the instrument without reading it because he was in a great hurry and "took Dr. Farlow to be a gentleman." In view of the verdict in his favor respondent's version of the oral agreement must be taken as true and it will be assumed, in considering the case, that he relied upon the representation of appellant that the written instrument was strictly in accordance therewith.
Although both parties are members of the medical profession, appellant's actual business was that of a real estate agent, while respondent, in possession of all his faculties, was engaged in numerous industrial enterprises of considerable magnitude and is a graduate of five prominent institutions of learning. He was a nonresident of this state and, prior to negotiating for the electric light plant, was wholly unacquainted with appellant and between them no confidential or fiduciary relation ever existed. Consequently these litigants dealt at arm's length and the case is not of an illiterate party seeking relief from the consequences of his failure or inability to read a written instrument before affixing his signature thereto. Neither is it one in which the signer was prevented from ascertaining the truth by subterfuge or some fraudulent devise, such as the substitution of one instrument for another or the introduction of a latent clause wholly at variance with and intended by artifice to pervert the oral agreement into which the parties had previously entered. As the instrument here sought to be avoided consists of but one sentence of three lines and its legibility is not question, it seems almost incredible that respondent could have signed the same without at least observing the last line immediately above his signature and as follows: "I will pay you a commission of twelve hundred and fifty dollars." As the law presumes that he read what he was signing and understood its contents, the contract can only be vitiated on the ground of fraud by competent evidence which is clear, convincing, and conclusive.
In Magee v. Verity, 97 Mo.App. 486, 71 S.W. 472, a decree in equity canceling a note and trust deed for the reasons here urged was reversed on appeal, and, in the course of the opinion, the court said: ...
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