Lewis v. Foy

• Decision Date: 10 January 1940
• Docket Number: 13121.
• Citation: 6 S.E.2d 788,189 Ga. 596
• Parties: LEWIS v. FOY.
• Court: Georgia Supreme Court

6 S.E.2d 788

189 Ga. 596

LEWIS v. FOY.

No. 13121.

Supreme Court of Georgia

January 10, 1940

Syllabus by the Court.

Any misrepresentation, act, or artifice intended to deceive, and which does deceive another who is reasonably diligent in the use of the facilities at his command, is a fraud that will authorize cancellation of a written contract. A fraud which will relieve from a contract a party who can read must be such as prevents him from reading it. The fact that the defendant in the instant case took the deed out of the plaintiff's hands when she undertook to read it will not excuse her for failure to read it, nor does the fact that she did not have her glasses, that they were inaccessible, and that she could not read without them justify her failure to read; nothing being alleged to show an emergency making it necessary that she sign without delay. The defendant's saying he was in a hurry constituted no emergency. Although in the past he had represented both the plaintiff and her father as their attorney in other matters, such facts created no confidential relationship between the plaintiff and the defendant in the transaction under attack.

Roy S. Drennan, Roland Neeson, and Geo. Brannon, all of Atlanta for plaintiff in error.

R S. Foy, of Sylvester, and Homer Beeland, of Reynolds, for defendant in error.

DUCKWORTH Justice.

Mrs Elba Lewis brought suit against C. W. Foy, praying for cancellation, injunction, accounting, and general relief. The petition contained the following allegations: 'On December 25, 1913, petitioner's father died, and she inherited from him a described farm in Taylor County, Georgia. On July 12, 1922, petitioner procured from the Federal Land Bank of Columbia a loan of $4500 to be repaid in 68 semi-annual instalments, and as security for the loan she executed a security deed conveying the farm inherited from her father. During the latter part of 1931 the defendant approached petitioner with an offer to take the farm and operate it and pay all expenses, including taxes and payments on the land bank debt, and then divide the remainder of the income equally with her. She orally agreed to accept the defendant's proposition. On September 18, 1931, the defendant brought a written document to the petitioner which he represented was the oral agreement for the operation of the farm reduced to writing. When petitioner undertook to read the instrument, the defendant took it from her before she could read it, and said he was in a hurry and did not have time for her to read it, but said he would explain it to her; whereupon he explained that it embodied their verbal agreement for the operation of the farm by defendant. Having implicit confidence in defendant, because he had been attorney for her father and also attorney for petitioner, she relied on his false and fraudulent representations as to what the paper contained, and signed and delivered it to him.' A copy of the paper thus signed was attached to the petition and made a part thereof. It is a plain warranty deed reciting a consideration of $600, obligating defendant to pay petitioner's debt to the Federal Land Bank, and conveying to him the lands which the petitioner inherited from her father. It was witnessed by C. R. Hendrix and H. E. Duncan, N. P. By amendment the petitioner alleged that at the time the document was presented to her she did not have her eyeglasses or access to them, and that due to her feeble eyesight she was not able to read the document without her glasses, but that she signed the paper because of defendant's representations and her confidence in him. The deed falsely recited a consideration of $600, and was in fact only a colorable scheme whereby the defendant sought to obtain title to petitioner's property by fraud. The petitioner did not learn that the paper which she signed was a warranty deed until May, 1938. The defendant repeatedly told her that he was unable to make a profit from the farm because of market conditions, and gave her ten dollars on five different occasions after the signing of the deed as her profits from the farm, and by these deceptive devices prevented her from discovering the fraud perpetrated on her until May 10, 1938. The defendant has paid $2,361.93 on petitioner's note to the Federal Land Bank, of which one payment of $305.14 was paid on October 19, 1931, and another of $301.50 was paid on February 13, 1932. Some taxes have also been paid, but petitioner does not know how mich. It was also alleged that defendant obtained possession of live stock and farm implements of a value of $3,000 when he took charge of the farm, and he has sold or otherwise disposed of this personal property. The use of the farm which defendant has enjoyed is of the value of $5,000. In view of the facts alleged above, an accounting between the parties is necessary. The defendant demurred generally and specially to the petition as amended. The court sustained the general demurrer and dismissed the action, and the plaintiff excepted.

The primary relief sought by the plaintiff is the cancellation of the deed to the defendant. Her claim of right to such relief is put upon alleged fraud of the defendant, by which she was induced to execute the deed. This alleged fraud consists of first, defendant's taking the deed in question from plaintiff's hands when she undertook to read it; and second, in plaintiff not having her glasses, which were inaccessible and without which she could not read, and the defendant in each case misrepresenting the contents of the deed and stating that he was in a hurry. While there may be serious doubt and uncertainty as to what particular facts will constitute fraud authorizing the rescission of a written contract, yet there can be no doubt as to the rule of law by which such facts must be measured in determining whether or not a written contract may be rescinded. The rule may be briefly stated as follows: Any misrepresentation, act or artifice, intended to deceive, and which does deceive another, who is reasonably diligent in the use of the facilities at his command, is a fraud that will authorize a rescission of a written contract. It has often been held by this court that a party to the contract who can read must read, or show a legal excuse for not doing so, and that fraud which will relieve a party who can read must be such as prevents him from reading. Stoddard Manufacturing Co. v. Adams, 122 Ga. 802, 50 S.E. 915; Truitt-Silvey Hat Co. v. Callaway & Truitt, 130 Ga. 637(2), 61 S.E. 481; Weaver v. Roberson, 134 Ga. 149, 67 S.E. 662; Baker v. Patton, 144 Ga. 502, 87 S.E. 659; Stokes v. Humphries, 152 Ga. 621, 111 S.E. 36; Green v. Johnson, 153 Ga. 738(3), 113 S.E. 402; Martin v. Turner, 166 Ga. 293, 143 S.E. 239; Wynn v. First National Bank of Newnan, 176 Ga. 218(2), 167 S.E....