Harris v. Bingham

• Decision Date: 10 April 1957
• Docket Number: No. 238,238
• Citation: 97 S.E.2d 453,246 N.C. 77
• Parties: James A. HARRIS and wife, Mary Frances Harris, v. Fannie Lou BINGHAM.
• Court: North Carolina Supreme Court

Page 453

97 S.E.2d 453

246 N.C. 77

James A. HARRIS and wife, Mary Frances Harris, v.Fannie Lou BINGHAM.

No. 238.

Supreme Court of North Carolina.

April 10, 1957

McDougle, Ervin, Horack & Snepp by R. B. McKnight, Jr., Charlotte, for plaintiffs, appellants.

No counsel for defendant.

PARKER, Justice.

Plaintiffs signed a contract drafted by defendant as their real estate broker to convey a house and tract of land owned by them to M. F. Stumpf which property the contract stated was free of all easements, except those for public utilities.When Stumpf discovered that a portion of the tract of land was subject to a right-of-way for a road, and that plaintiffs could not convey to him the property free of all easements, except those for public utilities, as they had contracted to do, he refused to consummate the purchase.

There is no allegation in the commplaint that plaintiffs did not read the contract, or that they are unable to read, or that they were induced to sign the contract by fraud or deception, or that they were misled as to its contents.'The duty to read an instrument or to have it read before signing it, is a positive one, and the failure to do so, in the absence of any mistake, fraud or oppression, is a circumstance against which no relief may be had, either at law or in equity. 'Harrison v. Southern R. Co., 229 N.C. 92, 47 S.E.2d 698, 700.

This Court said in Williams v. Williams, 220 N.C. 806, 18 SE.2d 364, 366: 'In this state it is held that one who signs a paperwriting is under a duty to ascertain its contents, and in the absence of a showing that he was wilfully misled or misinformed by the defendant as to these contents, or that they were kept from him in fraudulent opposition to his request, he is held to have signed with full knowledge and assent as to what is therein contained.'

The right to rely upon the assumption that another will exercise due care is not absolute, Union Trust Co. v. Detroit, G. H. & M. R. Co., 239 Mich. 97, 214 N.W. 166, 66 A.L.R. 1515, and must yield to the realities of the situation to the extent that if the plaintiff observes a violation of duty which imperils him, he must be vigilant in attempting to avoid injury to himself, Graff v. Scott Bros., 315 Pa. 262, 172 A. 659;38 Am.Jur., Negligence, Sec. 192.If the defendant were guilty of negligence in failing to exercise reasonable care and skill as a real estate broker in drafting the contract of sale, a question not necessary for us to decide here, ...