Prestwood v. Carlton

• Decision Date: 10 June 1909
• Citation: 162 Ala. 327,50 So. 254
• Parties: PRESTWOOD v. CARLTON.
• Court: Alabama Supreme Court

50 So. 254

162 Ala. 327

PRESTWOOD v. CARLTON.

Supreme Court of Alabama

June 10, 1909

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

Action by J. B. Carlton, as administrator, against J. A. Prestwood. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Stallings & Reid and Foster, Samford & Prestwood, for appellant.

Powell Albritton & Albritton and Henry Opp, for appellee.

MAYFIELD J.

This action was brought for the breach of covenants of warranty contained in a lease of certain lands for turpentine purposes. The lease is set out in the complaint, and the various breaches assigned in each count are, in substance that the covenant was broken in that the lessor had no title to certain lands leased, but that such lands at the time of the lease were owned and possessed by other named parties than the lessor. No question is raised on this appeal as to the sufficiency of the complaint. The complaint contained 10 counts, each assigning a breach because of want of title and the possession on the part of the lessor, each count alleging title to certain parts of the lands leased to be in separate and distinct parties. To this complaint defendant filed five pleas, only one of which need be considered on this appeal because the sufficiency of the others is not raised, or, if raised, was decided in favor of appellant. This one plea to be considered on this appeal is plea No. 3, the sufficiency of which was tested by demurrer thereto, and was decided against the appellant, in that there was a judgment sustaining the demurrer as to this plea which raised one of the material questions to be decided. The second, third, and seventh assignments of error each raises substantially the same point of law, which is this: Whether or not a verbal agreement between the defendant and one McIntosh, the alleged owner and possessor of the lands at the time of the lease, by which McIntosh agreed for the defendant to lease his lands for turpentine purposes, is a defense to this action. The fourth, sixth, eighth, tenth, eleventh, and twenty-first assignments of error all relate to the proper measure of damages in this action, and the thirteenth, fourteenth seventeenth, eighteenth, and nineteenth assignments of error relate to the general affirmative charge requested by the defendant on the several counts of the complaint. The charge that the defendant cannot recover on the first, eighth, ninth, or tenth counts is not insisted upon. The twenty-third assignment of error relates solely to the refusal of the court to set aside the judgment, and grant a new trial for the defendant. It is not necessary to discuss in this opinion or to decide as to whether or not there was error as to each one of the separate assignments.

There are a few general propositions of law involved on this appeal, and a correct decision of these will sufficiently point out or pass upon the correctness or incorrectness of the rulings of the trial court as to the several assignments of error. The first of these questions of law is this: "Whether or not the misrepresentations of the vendee or lessee at the time of executing a lease, which is in writing and under seal, as to the description of the premises to be leased, and which representations are relied upon by the lessor or grantor, are available in an action at law for the breach of covenant in the lease because of want of title or want of possession on the part of the vendor at the time of the execution of the lease. If the grantee or the lessee by misrepresentations of what the grant or lease contains obtains the grantor's signature to the grant or lease which he did not intend to sign, and did not know he was signing, this is a fraud which is available in a court of law. Foster v. Johnson, 70 Ala. 249; Davis v. Snider, 70 Ala. 315; Shelby Iron Co. v. Ridley, 135 Ala. 513, 33 So. 331; Pinckard v. American Mortgage Co., 143 Ala. 571, 39 So. 350. Yet, if a party signs an instrument without reading it or having it read to him if he cannot read, he cannot avoid it because not informed of its contents, unless there be fraud, deceit, or misrepresentations practiced upon him in the execution thereof. Ignorance of its contents in such case the law attributes to his own negligence. Pacific Guano Co. v. Anglin, 82 Ala. 492, 1 So. 852; Burroughs v. Pac. Guano Co., 81 Ala. 255, 1 So. 212; Beck & Pauli Co. v. Houppert & Worcester, 104 Ala. 503, 16 So. 522, 53 Am. St. Rep. 77; Bank of Guntersville v. Webb & Butler, 108 Ala. 132, 19 So. 14. But if the execution of any written instrument, such as a lease, deed, or mortgage, is obtained from the grantor by a misrepresentation of its contents made by the grantee or lessee, the grantor not knowing what he is signing and not intending to sign such a document, then the ignorance of the contents is not attributable to the party signing by a failure to read, or to have it read to him, because the natural effect of the misrepresentations in such case may have been to prevent him from so reading it or having it read. He may have trusted to the truth of the representations made by the other party with whom he was dealing. Authorities supra. To state the proposition in different language: One who has executed a written contract in ignorance of its contents cannot set up his ignorance to avoid the obligation in the absence of fraud or misrepresentations. If he cannot read, it is his duty to have the instrument read to him; but, if the execution of such contract by him was procured by misrepresentations on the part of the other party of its contents, such misrepresentations may be such a fraud as will furnish a defense in an action at law, based upon such contract, when brought by the party making the misrepresentations. Cannon v. Lindsey, 85 Ala. 198, 3 So. 676, 7 Am. St. Rep. 38; Bates v. Harte, 124 Ala. 427, 26 So. 898, 82 Am. St. Rep. 186. Judge Brickell has stated the proposition as follows in the case of Tillis & O'Neal v. Austin, 117 Ala. 263, 22 So. 975: "When the execution of an instrument which the party signing did not intend to sign and did not know he was signing is procured by a misrepresentation of its contents, and the party signing it does so without reading or having it read, relying upon such misrepresentation and fraud and believing he is signing a different instrument, he can avoid the effect of his signature notwithstanding he was able to read, and had the opportunity to read the instrument." The law imposes the duty of ascertaining the truth of statements made in transactions as to material matters, and requires that, if the statements are false, they shall be made good, and that the party shall not take advantage of his own wrong. Jordan v. Pickett, 78 Ala. 331. One who is negotiating a trade must not recklessly or even innocently assert that as a fact which is untrue if such asserted fact be to any extent an inducement to the other party to enter into the contract. Honest belief in the truth of the statement of such fact, while it exculpates from moral fault, does not relieve from the legal liability to make it good. Jordan v. Pickett, 78 Ala. 331; Ball v. Farley, 81 Ala. 288, 1 So. 253. It is as much a fraud to affirm as true that which is untrue, though not known to be so, as it is to assert what is untrue and known to be so. Jordan v. Pickett, 78 Ala. 331.

Plea No. 3, if the facts therein stated be true (and on demurrer the facts alleged must be taken as true), presented a complete defense to the plaintiff's entire action. The plea was as follows: "(3) For further special plea to the complaint defendant says: That his signature was obtained to the contract sued upon by a statement of such facts and under such circumstances as constitute fraud in law. That such circumstances are as follows, to wit: The plaintiff's intestate applied to defendant prior to the execution of the contract sued upon for the execution by the defendant to the plaintiff's intestate of such a contract as the one which he executed, and which is sued upon, and plaintiff's intestate and defendant had a verbal agreement as to the terms of the lease, whereby defendant agreed to execute to the plaintiff's intestate lease upon his (defendant's) lands. Defendant thereupon told plaintiff's intestate that he (defendant) did not know the description of his lands by their numbers, and plaintiff's intestate agreed with defendant that plaintiff's intestate go to the courthouse, and to the tax books where defendant's lands were assessed to him and ascertain the numbers of the defendant's lands and the correct description thereof, and defendant relied upon plaintiff's intestate to ascertain the correct description of the lands of defendant which had been agreed to be leased by defendant to the plaintiff's intestate. Plaintiff's intestate thereupon went to the courthouse, and afterwards returned to defendant with a description of a large amount of land, and told defendant that the same described defendant's lands, and defendant did not know whether said description was a correct description of defendant's lands or not, but defendant relied upon the statement to that effect by the plaintiff's intestate and acted thereon, and plaintiff's intestate wrote out the contract sued upon, and inserted the numbers of the land therein, and presented the same to defendant, stating that the same described only the lands of defendant, and defendant, not knowing any better, but relying upon said statement of plaintiff, executed the contract sued upon, and defendant says that if said contract embraces lands not owned by defendant, as alleged in the bill or complaint, to that extent said statement of said plaintiff's intestate that said description only described the lands of the defendant was false, and...