Opinion
36100.
DECIDED APRIL 11, 1956. REHEARING DENIED APRIL 25, 1956.
Action on contract. Before Judge Henson. Fulton Civil Court. January 18, 1956.
Fraser Shelfer, for plaintiff in error.
Matthews McClelland, contra.
It is a fundamental principle that one who can read must read; and the signing of a paper would be a waiver of representations alone as to the contents thereof. However, such representations as to the contents of a paper, coupled with a trick or artifice to procure the signing of the same, may constitute such fraud as would relieve the signer of the obligation thereto.
DECIDED APRIL 11, 1956 — REHEARING DENIED APRIL 25, 1956.
B. E. Robuck, Inc., brought an action against Mrs. Ethel Odum Walker. The material allegations of its petition are substantially as follows:
The defendant is indebted to the plaintiff in the sum of $1,950.95 by reason of the following facts: On August 9, 1954, the plaintiff entered into an agreement with the defendant, a copy of which is attached hereto and by reference made a part hereof. At the time of the execution of the contract and at all times referred to herein, the plaintiff was engaged in the business of furnishing architectural planning services and the plaintiff at the time of the execution of the contract and at all times referred to herein was duly licensed and registered to practice architecture in the State of Georgia and had fully complied with the laws relating to the registration of architects. The plaintiff has fully performed all of the professional services required by the defendant under the contract, and has otherwise performed and fully discharged all its obligations arising under the terms and provisions thereof. At the special instance and request of the defendant in connection with but in addition to the work done by the plaintiff under the contract, the plaintiff designed and prepared special plans for the construction and erection of a triplex on a lot adjoining the property of the defendant on West John Calvin Avenue in College Park, Georgia. By reason of the work done, expenses incurred, and professional services rendered by the plaintiff under its contract with the defendant, the defendant is indebted to the plaintiff in the sum of $1,750.95. The reasonable value of the services rendered the defendant in connection therewith, but in addition to the contract and at her special instance and request, is $200. An itemized statement of the total indebtedness due is attached to the petition and made a part thereof. Demand has been made upon the defendant for the payment of the sums due, but she fails and refuses to pay the same.
The defendant filed her plea and answer denying the allegations of the petition, and by way of further answer, alleged that she owns property known as 121 W. Harvard Avenue in College Park, which property is subject to a loan of more than $10,000. Prior to August, 1954, the defendant entered into certain discussions with B. E. Robuck, president of the plaintiff corporation, and H. K. Marshall, architect and vice-president of the plaintiff corporation, with respect to obtaining their electrical services in the erection of a store on such property. The defendant informed the plaintiff corporation by informing its president and vice-president that she would agree to erect a store building which was in turn to be rented by King Hardware Company and built to its specifications provided it could be financed. The defendant advised the plaintiff that the property was subject to a loan at that time of $10,336, and that while she had other properties, they were subject to loans and she could not finance the proposed store unless a loan could be obtained thereon that would completely finance the project, including the payment of the then existing loan. The plaintiff, through its officers, proposed that it would make the necessary plans and drawings to meet the specifications for the King Hardware Company store, that it would assist the defendant in negotiating a loan, that the negotiations for the loan could not be started until the plans had been prepared. Under this arrangement, the plaintiff prepared the detailed plans and specifications to meet the requirements of the proposed lessee. It was then estimated by the plaintiff that $46,461.37 would be required to erect the proposed store building, and to pay the existing loan and to pay for the services of the plaintiff in the preparation of their drawings and other costs. The plaintiff prepared an itemized list of these costs, which is attached hereto. The plaintiff thereafter assisted the defendant in making application for a loan to finance the project — the plaintiff having been advised that the defendant could not erect the store building unless the total cost could be financed by a loan. Considerable negotiations were had in an effort to obtain the loan, but the best loan that could be obtained was many thousand dollars short of the total amount required to finance the project. The defendant signed certain loan applications, and on August 9, 1954, the plaintiff presented her with a certain contract which the plaintiff represented had been prepared by it and that this contract was in accordance with the previous agreements between the plaintiff and the defendant. The contract was presented to the defendant for her signature and she started to read the same.
At that time, Mr. Robuck, president of the plaintiff corporation, and Mr. Marshall, vice-president of the plaintiff corporation, undertook to explain the contract to the defendant so as to make a reading of the contract unnecessary. Mr. Marshall took the contract and began to read and expound thereon, leading the defendant to believe that the contract had been fully prepared in accordance with their previous agreement. Mr. Marshall purportedly read from the contract a provision that the contract was contingent upon the obtaining of a loan in the amount of $46,461.37, and also stated that the contract was otherwise in full accord and harmony with their previous agreement. The defendant believed these representations and believed that Mr. Marshall was reading correctly from the contract, and she relied upon him and signed the contract, believing the representations to be true. When it was discovered thereafter that a loan could not be secured for a sufficient amount to finance the project, the defendant was forced to abandon her efforts in that respect and shocked to discover that the plaintiff was making demand for architectural services, and it was then for the first time discovered by the defendant that she had been fraudulently induced not to read the contract by the artifice and fraud brought upon her at the time of the signing of the contract due to her reliance upon the plaintiff and the confidential relationship existing between the parties. At the time of the execution of the contract, the defendant was suffering great pain on account of spinal arthritis, and it was very difficult for her to move about. She was constantly under the care of a physician, and it was partially due to the fact that she was suffering such intense pain that she was made more susceptible to the artifice and fraud perpetrated upon her, and that the plaintiff knew these facts. The plaintiff represented throughout the negotiations that by following its suggestions in this matter the defendant would secure high rentals over a period of years from King Hardware Company and would solve her financial troubles. The defendant relied upon the plaintiff and believed the representations to be true until she discovered that the plaintiff had perpetrated a fraud upon her. The defendant, therefore, denies that she is indebted to the plaintiff in any sum whatsoever.
The plaintiff interposed general and special demurrers to the answer. The trial court overruled the general demurrer but sustained the special demurrers, striking her special defenses.
The trial court thereupon directed a verdict upon the contract and submitted the issue of the reasonable value of the other services to the jury. The verdict returned by the jury was for the amount for which suit was brought on account of the written contract, namely, $1,750.95. The jury obviously found in favor of the defendant on the other issue of the additional services.
The defendant filed no motion for a new trial.
Her bill of exceptions contains the following recitals and assignments of error: "On the 9th day of June, 1955, the Hon. Sam F. Lowe, Jr., one of the Judges of the Civil Court of Fulton County, sustained the said demurrer and struck the said special defense, and the striking of said special defense deprived said Mrs. Walker of her defense set up in said answer to the said ruling on said demurrer. Mrs. Walker then and there excepted and here and now excepts and assigns the same as error upon the ground that it was contrary to law . . . to the said verdict and final judgment of the court . . . the said Mrs. Walker then and there excepted, here and now excepts and assigns the same as error upon the ground that the same was contrary to law. Be it further remembered that Hon. Sam F. Lowe, Jr., having stricken the said defense of the said Mrs. Walker, and such rulings being controlling, as plaintiff in error contends, and which said antecedent rulings entered into and affected the further progress and final result of the case, the court erred in permitting said verdict to be rendered and said final judgment to be entered. To the action of the court in permitting the said verdict to be rendered and the said judgment to be entered, the plaintiff excepted and assigns the same as error upon the ground that the same was contrary to law for the reason that, the court having previously sustained the demurrer to defendant's special defense, and which said ruling entered into and affected the further progress and result of the case, as plaintiff in error contends, the same being controlling in effect, the said verdict and judgment illegally terminating the same case."
The grounds of the special demurrers to the defendant's answer are not set forth in the bill of exceptions or specified as a part of the record. The defendant in error, however, enumerates the grounds of demurrer in his brief on file in this court.
1. The motion to dismiss the writ of error, as one containing no assignment of error, is denied. There was a sufficient assignment of error upon a final judgment, ( Galanty v. Kirk, 91 Ga. App. 25, 84 S.E.2d 688), and although the assignment of error upon the judgment sustaining the special demurrers was insufficient without a recital in the bill of exceptions of the grounds of the demurrers, or a specification of the demurrers as a part of the record ( Varner v. Varner, 55 Ga. 573; Tree v. City of Atlanta, 144 Ga. 757, 87 S.E. 1021), the plaintiff in its brief stated the grounds of demurrer as a part of the record and the assignment of error upon the ruling upon the demurrers will be treated as sufficient. Code § 6-812.
2. We are confronted with one major question in this case: does the defendant's answer allege sufficient facts to show that the defendant was, by emergency, artifice, trick, or other device, so prevented from reading the contract before she signed it as to constitute such fraud as to void the contract upon which suit has been brought? There is apparently a great contrariety of opinion among the decisions dealing with cases of this type, which grows out of the nuances between the facts of the various cases.
"Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relationship, he cannot defend an action based on it . . . on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it. Stoddard Mfg. Co. v. Adams, 122 Ga. 802 ( 50 S.E. 915), and cit.; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) ( 56 S.E. 1030); Lewis v. Foy, 189 Ga. 596, 598 ( 6 S.E.2d 788), and cit.; Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 ( 94 S.E. 892); Odum v. Cotton States Fertilizer Co., 38 Ga. App. 46 (2) ( 142 S.E. 470); Gossett v. Wilder, 46 Ga. App. 651 (7), 653 ( 168 S.E. 903); Hodge v. Milam, 48 Ga. App. 105 ( 171 S.E. 870)." Morrison v. Roberts, 195 Ga. 45 ( 23 S.E.2d 164). See further, in this connection, Bateman v. Small Tharpe, 24 Ga. App. 244 ( 100 S.E. 573); Sloan v. Farmers Merchants Bank, 20 Ga. App. 123 ( 92 S.E. 893); Barnes v. Slaton Drug Co., 21 Ga. App. 580 ( 94 S.E. 896); Miller v. Walker, 23 Ga. App. 273 ( 97 S.E. 869); Widincamp v. Patterson, 33 Ga. App. 483 (2) ( 127 S.E. 158); Hadden v. Williams, 37 Ga. App. 464 ( 140 S.E. 797); Davidson v. Nalley Land c. Co., 39 Ga. App. 212 ( 146 S.E. 559); Robinson Co. v. Rice, 39 Ga. App. 785 ( 148 S.E. 542); Harrison Garrett v. Wilson Lumber Co., 119 Ga. 6 (2) ( 45 S.E. 730); Georgia Medicine Co. v. Hyman Co., 117 Ga. 851 ( 45 S.E. 238); Greene v. Johnson, 153 Ga. 738 (3) ( 113 S.E. 402); Lee v. Loveland, 43 Ga. App. 5 (2) ( 157 S.E. 707).
The plaintiff could not have relied alone upon the representations made by the plaintiff's agent that the writing contained all of their prior agreements unless there was a fiduciary or confidential relationship existing between them. This is clearly established by the cases cited above and the following cases: Harrison v. Lee, 13 Ga. App. 346 ( 79 S.E. 211); Parker v. Parrish, 18 Ga. App. 258 ( 89 S.E. 381); Weaver v. Roberson, 134 Ga. 149 ( 67 S.E. 662); Gunter v. Edmonds, 149 Ga. 518 ( 101 S.E. 118); Penn Mutual Life Ins. Co. v. Taggart, 38 Ga. App. 509, 511 ( 144 S.E. 400). While it is alleged that such a relationship existed between the parties, no facts demonstrating such a relationship are alleged, and that allegation of the answer was properly stricken on demurrer as a conclusion. The defendant alleges, however, that, in their oral negotiations, it had been agreed between the parties that a contingency clause was to be inserted in the written contract providing that, unless the defendant could obtain a loan to cover the expenses of the entire project, there should be no liability on her part for any services rendered, architectural or otherwise; and that, when she took the writing for the purpose of reading it, one of the plaintiff's agents took the writing from her and purported to read such a contingency clause as though contained in the paper and thus caused her to sign the contract which she would not have signed had she known that the writing did not contain the contingency clause. It would seem from the allegations of her answer that the defendant was in the exercise of some degree of diligence, in that she was undertaking to read the writing when it was taken from her by one of the plaintiff's agents. See, in this connection, Chapman Son v. Atlanta Guano Co., 91 Ga. 821, 825 ( 18 S.E. 41).
It appears, therefore, that the agent purported to read from the writing a provision which it did not contain — a provision of utmost importance to the defendant. She alleges that this was done by artifice and fraud to induce her not to read the contract before signing it; and taking the allegation as true against the demurrer, we think it was for the jury to determine whether or not the defendant was reasonably prevented from reading the writing by this alleged artifice, trick, or device, before she signed it. See, in this connection, Gossett Sons v. Wilder, 46 Ga. App. 651, 655 ( 168 S.E. 903), where it is said: "There is quite a difference between relying on statements and neglecting to read the instrument, and relying on the reading of the instrument itself by the opposite party. The one is a misrepresentation which will not relieve the maker from his neglect; while the other may or may not be an artifice, trick, or device perpetrated upon him, which in most cases, is a question of fact for the jury to pass upon and determine under proper instructions." See also, in this connection, Angier v. Brewster, 69 Ga. 362; Wood v. Cincinnatti Safe c. Co., 96 Ga. 120 ( 22 S.E. 909); McBride v. Macon Telegraph Pub. Co., 102 Ga. 422 (2) ( 30 S.E. 999); Davis Sewing Machine Co. v. Crutchfield, 117 Ga. 873 ( 45 S.E. 228).
The defendant relies heavily upon the case of Brooks v. Matthews, 78 Ga. 739 ( 3 S.E. 627). It would seem that in Thomas v. Eason, 208 Ga. 822 ( 69 S.E.2d 729), the Supreme Court intended, if it did not do so expressly, to overrule the Brooks case, supra. The present case differs from the Brooks case in this: the defendant here did exercise some diligence in attempting to read the writing before it was taken from her, whereas in the Brooks case the defendant made no effort to examine the contract which he signed.
In view of what has been said above, the trial court erred in striking the defense of fraud and this action rendered all further proceedings nugatory.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.