Robinson v. Glass

• Decision Date: 15 March 1884
• Docket Number: 10,347
• Parties: Robinson et al. v. Glass
• Court: Indiana Supreme Court

94 Ind. 211

Robinson et al. v. Glass

No. 10,347

Supreme Court of Indiana

March 15, 1884

From the Clark Circuit Court.

Judgment reversed.

C. L Jewett, for appellants.

A Dowling and J. K. Marsh, for appellee.

OPINION

Elliott J.

The rule has long prevailed that to make available an erroneous refusal to continue a cause, the refusal must be assigned as a reason for a new trial. Kent v. Lawson, 12 Ind. 675; Bratton v. Bratton, 79 Ind. 588; Swan v. Clark, 80 Ind. 57; Continental L. Ins. Co. v. Kessler, 84 Ind. 310. It has also been long settled that it is not proper to assign as error matters properly embraced by the causes stated in the motion for a new trial.

The question of the correctness of the ruling denying a continuance is, in this case, properly raised by the second specification in the assignment of errors, which is based on the ruling denying a new trial. We are satisfied that there was no error in overruling the motion for a continuance, and for this conclusion deem it only necessary to assign two reasons: 1st. There was not shown that diligence which the law requires of parties. 2d. It was not made to appear that there was any probability of obtaining the testimony of the person named in the application.

The controverted question in the case was whether the mortgage set forth in the appellee's complaint was obtained by fraudulent representations as to the property it covered and the amount of money it secured.

It is the law that one of sound mind must exercise prudence in making contracts, and if he neglects to exercise ordinary prudence, the courts will give him no relief. Seeright v. Fletcher, 6 Blackf. 380; May v. Johnson, 3 Ind. 449; Rogers v. Place, 29 Ind. 577; Craig v. Hobbs, 44 Ind. 363; Bacon v. Markley, 46 Ind. 116; Nebeker v. Cutsinger, 48 Ind. 436; American Ins. Co. v. McWhorter, 78 Ind. 136; Williams v. Stoll, 79 Ind. 80 (41 Am. R. 604); Baldwin v. Barrows, 86 Ind. 351. In Gatling v. Newell, 9 Ind. 572, it was said, in speaking of parties dealing upon an equal footing, that "The law will not relieve a man, thus circumstanced, for voluntarily neglecting to use common sense and judgment, if he has them."

A man who can read and does not read an instrument which he signs is, as a general rule, guilty of negligence, and so he is, if, being unable to read, he neglects to exercise ordinary prudence in requiring the instrument to be read to him. This is held in nearly all of the cases already cited, and also in the cases of Clodfelter v. Hulett, 72 Ind. 137; Dutton v. Clapper, 53 Ind. 276. If any trick or artifice is resorted to which denies the person executing the instrument an opportunity of reading the instrument, or of having it read to him, the general rule does not operate.

The second instruction given by the court asserts the law substantially as we have stated it, and adds: "But what would be common prudence with one person might not be with another. The infirmity of age and of mind may be taken into consideration, where an effort has been made to deceive, in determining whether or not the person claimed to have been deceived exercised common prudence, such as persons similarly situated would ordinarily exercise under like circumstances. If such prudence is not exercised, there is no legal fraud; if exercised, and the person is deceived, then there is such fraud as the law will relieve from." It is clear to our minds that the appellants were given no reason to complain by this instruction.

Where a party has himself acted in good faith, and has yielded the person with whom he contracts just value for a mortgage, the fraud of a third person, not shared by the mortgagee, can not destroy the validity of the mortgage. 1 Whart. Cont., section 247.

The rule that contracting parties must exercise ordinary prudence in conducting negotiations and executing instruments is not, as counsel for appellees contend, confined to cases where the rights of third persons have intervened. Many of the cases we have already cited prove that the rule prevails where the controversy is between the immediate parties, and an examination of the text-books will show this to be true, and show also that it is so even in equity, as well as at law. 2 Pomeroy Eq., section 893; 2 Kent Com. 485. Judge Story said: "Courts of equity do not sit for the purpose of relieving parties, under ordinary circumstances, who refuse to exercise a reasonable diligence or discretion." 1 Story Eq., section 200, a.

It was proper to direct the jury that if the mortgages were executed in payment of judgments owned by the mortgagee, it operated as a satisfaction of them. Judgments may be satisfied by the acceptance of a mortgage, and the release of a judgment is a valuable consideration.

Attorneys' fees allowed upon a claim duly reduced to judgment can not be brought into question in a subsequent collateral suit.

We think the instructions upon the two propositions last stated were relevant to the case made by the evidence, and that they are not subject to the objections urged against them.

We have stated the general rule to be that one who signs an instrument must read it, or have it read to him, and have said that the rule does not operate where a trick or artifice is resorted to for the purpose of preventing the person from reading the instrument. We are now to consider what may be deemed such a trick or artifice. Ordinarily, one contracting party has no right to rely upon the statements of the other as to the character or contents of a written instrument (this, indeed, is only another form of stating the general rule); but while...