Walton Guano Co. v. Copelan

• Decision Date: 28 November 1900
• Citation: 37 S.E. 411,112 Ga. 319
• Parties: WALTON GUANO CO. v. COPELAN.
• Court: Georgia Supreme Court

37 S.E. 411

112 Ga. 319

WALTON GUANO CO. v. COPELAN.

Supreme Court of Georgia

November 28, 1900

Syllabus by the Court.

1. It is no defense to an action on a promissory note that the maker relied on certain representations made by an agent of the payee at the time of its execution, and that it did not contain the contract as actually made; the note not having been signed under any emergency, and there being nothing to prevent the maker from reading it, and it not being shown that the failure to read it was brought about by an actual fraud perpetrated by the agent of the payee at the time of its execution.

2. A written contract stipulating for the payment of a stated sum of money on a given day, but containing a provision that the "obligation may be discharged" at or before the maturity of the indebtedness by the delivery of a designated article of merchandise at a stated price, was not usurious upon its face.

3. The evidence in the present case did not authorize a finding that the transaction entered into between the parties, and evidenced by the instrument sued on, was a scheme or device for the purpose of evading the laws against usury.

4. The court erred in refusing to grant a new trial.

Error from superior court, Greene county; John C. Hart, Judge.

Action by the Walton Guano Company against R. W. Copelan. Judgment for defendant. Plaintiff brings error. Reversed.

Jas Davison, for plaintiff in error.

Saml. H. Sibley, for defendant in error.

COBB J.

The Walton Guano Company sued Copelan in the county court, and the case was carried by appeal to the superior court. The action was on a promissory note, in which it was stipulated that the indebtedness might be discharged in cotton of a designated grade, in merchantable bales, at 10 cents per pound, if delivered at or before the maturity of the note. The defendant filed an answer, in which it was set up that the consideration of his signing the paper sued on was the sale by the plaintiff to him of certain guano to be paid for with a certain number of bales of cotton, and that the incorporation of a promise to pay money instead of cotton was by accident or mistake, or for the purpose of defrauding the defendant, and without his knowledge or consent; the agent of the plaintiff having written the note, and the defendant relied on him to conform to the agreement, and did not know that such was not the case until the suit was brought. He admitted that he was due the plaintiff the sum of $50.40, and tendered the same. He further pleaded that the right to discharge the note by the payment of cotton before maturity at the rate of 10 cents per pound was a device to evade the laws against usury. At the trial the defendant testified, in substance, that he and the agent of the plaintiff entered into an agreement for the purchase by him of a certain quantity of guano; that the defendant said that he never paid money, but always paid in cotton, and the agent agreed to receive cotton; that nothing was said about giving a money note, and allowing the defendant to pay for it in cotton at 10 cents per pound; that the agent of the plaintiff came to him, and said, "I have got your note, just sign it, and save me any further trouble;" and the defendant told him, "All right," and signed it; that he thought the plaintiff's agent would do what was right, and thought he had made the note out right; that he never knew that the note was a money obligation until he went to settle it in the fall.

The jury returned a verdict in favor of the plaintiff for $44. The plaintiff made a motion for a new trial, which being overruled, he excepted.

1. Was there evidence sufficient for the jury to find in favor of the defendant on his plea of fraud? In Bostwick v Duncan, 60 Ga. 383, it was held that if a person signed a written agreement without reading it, and it did not contain the contract as in fact made, parol evidence was not admissible for the purpose of varying its terms. Mr. Chief Justice Warner in the opinion took occasion to remark that "it is not the duty or business of the courts to relieve parties from their gross negligence in making their contracts. Besides, in these days of hard swearing, when every man is a competent witness to swear for himself in his own case, the rule that parol evidence is not admissible to vary or contradict written contracts should not be relaxed." In Dyar v. Walton, 79 Ga. 466, 7 S.E 220, it was held that: "Gross errors committed in a settlement not intended by the debtor to be final, but nevertheless consummated by executing notes and mortgages for definite amounts, bearing interest from date, with 10 per cent. for attorney's fees, will be attributed by a court of equity, not to mistake, but to gross negligence." In Radcliffe v. Biles, 94 Ga. 480, 20 S.E. 359, it was held: "One who executes and delivers a promissory note without reading or knowing its contents cannot avoid liability thereon because he acted ignorantly, without showing some justification of his ignorance, either by reason of his inability to read, or by some misleading device or contrivance amounting to fraud on the part of the person with whom he was dealing." In Boynton v. McDaniel, 97 Ga. 400, 23 S.E. 824, it was held: "It is no defense to an action upon a promissory note that the maker, relying on certain representations made by another at the time of its execution, signed the note without reading it, and that it did not contain or express the contract as actually made, the note not having been signed under any emergency; there being nothing to prevent the maker from reading it, and no sufficient excuse for failing to do so being alleged." See, also, Jossey v. Railway Co., 109 Ga. 439, 34 S.E. 664. In Manufacturing Co. v. Summerour, 101 Ga. 820, 29 S.E. 291, the facts relied on for the purpose of avoiding the effect of a written instrument, which had been signed without reading it, were very similar to those in the present case. There the defendant testified: "At the time I signed the paper, I had it in my own hands folded as above stated. There was nothing to keep me from reading it, if I had wished to do so, or had thought it necessary. I thought Bowman would do what he promised, or I would not have had anything to have done with him." It was held that, as the defendant negligently omitted to take such precautions as would reasonably have served to protect him against the imposition claimed to have been practiced upon him, he was bound by the contract as executed. In the present case there were no misrepresentations made by the agent of the plaintiff at the time the note was signed. There was no trick or device by which the defendant was induced to sign the paper. He had full opportunity to read the same, and nothing done by the plaintiff's agent prevented him from doing so. Nor was there any emergency which required haste, though an emergency of the defendant's own creation would, of course, not have availed him as a defense. The only excuse offered by him for not reading the note was that he relied upon the agent of the plaintiff to have the note drawn in accordance with the prior agreement made with him. If the plaintiff has signed a contract which does not express the terms of the agreement entered into between him and the plaintiff, this is due to...