Southern Fertilizer & Chemical Co. v. Carter

• Decision Date: 14 November 1917
• Docket Number: 8378.
• Parties: SOUTHERN FERTILIZER & CHEMICAL CO. v. CARTER.
• Court: Georgia Court of Appeals

94 S.E. 310

21 Ga.App. 282

SOUTHERN FERTILIZER & CHEMICAL CO. v. CARTER.

No. 8378.

Court of Appeals of Georgia, Second Division

November 14, 1917

Syllabus by the Court.

Where an agent sold guano to a person who could neither read nor write, and afterwards went to the home of the purchaser, and "it was nearly night when he came up in his car, and he did not stay but a little while," and the agent told the purchaser he "had come to get him to sign the guano note," and thus secured his mark to a note in which was embraced a mortgage on the crop, of which latter fact the agent did not apprise the purchaser, this was such a fraud as, when properly pleaded and proved, would relieve the purchaser of liability under the mortgage, it not appearing that there was any third party present who could read and write, and the signer of the note being thus compelled to rely upon the representations of the agent who procured the note. In Gore v. Malsby & Co., 110 Ga. 900, 901, 36 S.E. 315, 317, we find the following: "The defendant was illiterate; could neither read nor write; and avers the note was never read over to him before he signed it. We think the allegations make out a clear case of the procurement of the note by such fraud as would render it absolutely void in law and, instead of seeking to vary a written contract by parol evidence, he is simply endeavoring to show what the real contract was, and that his signature to what purports to be the written contract was obtained by the fraudulent misrepresentations of the party with whom he was dealing. * * * It has repeatedly been decided that when one through his own negligence fails to inform himself about the contents of a written contract, he will not be allowed to vary it by parol evidence. But the difference is very marked between that class of cases and where one from illiteracy or ignorance is unable to read the writing he is induced to sign, and has to rely upon the representations made by the draftsman. * * * See, also, in this connection, Hansford v. Freeman, 99 Ga. 376 ; Chapman v Atlanta Guano Co., 91 Ga. 821 , where a note was written out for more than the agreement, and was signed by the maker when so dark that he could not see well, but on the representation of the payee. It was held that this constituted a good defense to the note. Certainly it would be equally as good a defense when the maker could not read what he was signing, and relied upon the representations of the draftsman. Numerous other authorities might be cited to sustain the ruling herein announced. In fact we know of no other adjudication of this or any other court of last resort at all in conflict with our decision in this case."

A general rule laid down in Epps v. Waring, 93 Ga 768, 20 S.E. 645, is as follows: "It is a universally recognized doctrine, supported by all respectable text-writers and upheld in every well-considered case bearing upon this subject, that where a party has been induced to enter into a contract by a willful...