Pimpinello v. Swift & Co.

• Decision Date: 11 February 1930
• Citation: 170 N.E. 530,253 N.Y. 159
• Court: New York Court of Appeals Court of Appeals
• Parties: PIMPINELLO v. SWIFT & CO., Inc.

253 N.Y. 159

170 N.E. 530

PIMPINELLO

v.SWIFT & CO., Inc.

Court of Appeals of New York.

Feb. 11, 1930.

Action by Gaetano Pimpinello against Swift & Co., Inc. From an order of the Appellate Division, Second Department (227 App. Div. 740, 236 N. Y. S. 877) affirming an order of the Special Term denying defendant's motion to dismiss the complaint as insufficient, defendant appeals, and the Appellate Division certified the question: ‘Does the amended complaint state a cause of action?’

Order affirmed, and question certified answered in the affirmative.

Appeal from Supreme Court, Appellate Division, Second Department.

James G. Purdy, of New York City, for appellant.

Paul Jones, of New York City, for respondent.

KELLOGG, J.

The complaint alleges that in December, 1925, the plaintiff commenced an action against the defendant to recover damages for personal injuries sustained through the negligent operation, by the defendant's servants, of a certain motortruck, that in April, 1928, the plaintiff's attorney represented to the plaintiff that the defendant had agreed to pay $750 on account of the plaintiff's claim, and that, when the case was reached for trial, the defendant would pay a larger amount in full settlement. The complaint then alleges as follows: ‘That the plaintiff, relying on the said representation so made to him and believing the same to be true and it being represented to him by his said attorney that in order to obtain his agreed share or portion of the said $750, offered by the defendant in part payment of his claim, as plaintiff believed, was induced by his said attorney to sign a paper, the nature and contents of which were not explained to him by his said attorney and the plaintiff not being able to read or write English, was unable to ascertain on his own account the nature and contents of the said paper but believed the same to be a receipt in payment of the said $750, represented to him to be a payment on account of his claim in said action and delivered the same to his said attorney.’

It further alleges that the paper was delivered by the attorney to the defendant; that the plaintiff afterwards learned that the paper signed by him was a general release of all his claims against the defendant; that it was fraudulently obtained from the plaintiff; that he was induced to sign it by false and fraudulent representations; that, had he known its true nature, he would not have signed it; that the consideration paid for the paper was $750; that this was a grossly inadequate sum to compensate the plaintiff for his injuries; that, immediately upon discovery of the true nature of such paper purporting to be a general release, the plaintiff repudiated the same, and offered to repay the consideration received; that the defendant refused to accept the same. The complaint demands judgment for the cancellation of the general release signed by him under the circumstances stated.

It will be noted that, in the sentence of the complaint which we have quoted, the subordinate clause beginning with the words ‘it being represented’ is incomplete in that the pleader has omitted to state the fact represented. In the same sentence the pleader has asserted that the paper was ‘represented to him to be a payment on account of his claim,’ without naming the person who made the misrepresentation. However, although the sentence, when analyzed, discloses the omission of material words, we think sufficient have been employed to convey the meaning that it was ‘represented’ by the plaintiff's attorney that, in order to obtain the part payment offered, it was necessary for the plaintiff to sign the paper, and that the attorney represented the paper to be a receipt for such payment.

Ordinarily, the signer of a deed or other instrument, expressive of a jural act, is conclusively bound thereby. That his mind never gave assent to the terms expressed is not material. Wigmore on Evidence, § 2415. If the signer could read the instrument, not to have read it was gross negligence; if he could not read it, not to procure it to be read was equally negligent; in either case the writing binds him. Chicago, St. P., M. & O. Ry. Co. v. Belliwith (C. C. A.) 83 F. 437. ‘So, if the party that is to seal the deed, can read himself and doth not, or being an illiterate or a blind man, doth not require to hear the deed read, or the contents thereof declared, in these cases albeit the deed be contrary to his mind, yet it is good and unavoidable.’ Sheppard's Touchstone, p. 56. That a party should be bound by a contract or by a conveyance which he had no will to make may seem anomalous. Professor Wigmore, in explanation, reasons that the actor, having the will to sign the writing, is bound by the consequence, ‘reasonably to have been anticipated’ from the signing of a document unread, that its terms might not truly express the intent of the signer. Wigmore on Evidence, § 2413. In Hunter v. Walters, [L. R.] 7 Ch. App. 75, 82, 4 L. J. Ch. 175, Lord Hatherley said that the signer ‘cannot affect not to know what he was doing;’ and in the same case, James, L. J., said that the man ‘who has made the representation’ (that is, the man who signed the writing) ‘must bear the consequences.’ Mr. Ewart attributes the conclusiveness of the writing, as against the signer, ‘albeit the deed be contrary to his mind,’ to the doctrine of estoppel. Ewarton Estoppel, c. 25, p. 435.

Whether all the elements of a legal estoppel be present or not, nevertheless, in the sense that he may not dispute the deed, the signer is in fact estopped. However, there are instances where ‘an unexpressed intent can be allowed to overthrow the outward act.’ Wigmore on Evidence, § 2405. If the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him by the other party, or even by a stranger, unless the signer be negligent, the writing is void. Cleary v....