Root v. Zaller — 19 N.Y. St. Rep. 679

Majority

p. 679

Charles T. Root et al., Pl’ffs, v. Louis Zaller et al., Def’ts.

(City Court of New York, Trial Term,

Filed December 10, 1888.)

Headnote

1. Contract for advertising-—Misrepresentations of canvasser—Dutt OF PERSON SIGNING DOCUMENT TO READ IT AND PROTECT HIMSELF.

One who signs a written order and contract, for advertising in a news

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paper or periodical, will be bound according to the terms of the contract,' and will not be relieved from liability by showing that the instrument was-different from what,the canvasser represented it to be, and that he signed. it without reading.

2. Same—When pabty bound by.

A person capable of reading and understanding an instrument which he signs, is bound thereby, unless he is deceived by the fraudulent substitution of one instrument for another.

The plaintiffs are publishers, and sue upon an order addressed to them in these words: “Insert an advertisement in the ‘ American Reporter,’ to occupy the space of onetwelftli page for twelve times for which we will pay you sixty-seven 50-100 dollars. We do not hold you responsible for any statement or conditions not expressed in this order.” The order was signed by the defendants, and was delivered to the plaintiffs by their canvasser, who obtained it from the defendants, and the advertisement was published in accordance with it. The defendants contend that their contract was for three times only, aggregating $16.87, which they paid, and that the canvasser represented that the writing was only for three insertions, on the faith of which they signed the contract. The defendants were able to read and write, but did not read the paper they signed. The plaintiffs moved for the direction of a verdict, which was denied, and the question of fraud was submitted to the jury, who found for the defendants.

The plaintiffs moved for a new trial.

Freeman & Green, for pl’ffs; James B. Angel, for de’fts.

The plaintiffs claim that as the defendants were able to read the contract for themselves, before-they signed it, they are bound by its provisions. In other words, having the means of knowledge at hand, the defendants were bound to avail themselves of such means, and cannot now complain of fraud, when the exercise of ordinary vigilance and caution would have rendered that impossible. This is a correct statement of the criminal law (Barbour’s Crim. L., 136, 137; People v. Williams, 4 Hill, 12 , its object being to protect that portion of the public-who from want of intelligence cannot protect themselves People v. Stetson, 4 Barb., 154 . It is also the rule applicable to civil actions. 2 Kent’s Coms., 484, 485; Story’s Eq. Jur., § 200 a; 2 Starkie’s Ev., 374. If a person cannot read a coixtract submitted to him for signature, aixd the conteixts are misrepresented to him, and he is free from negligence, he may avoid the contract for the fraud. Whitney v. Snyder, 2 Lansing, 477; Edick v. Dake, 2 W. Dig., 559; S. C., 14 Hun, 481 ; First National Bank v. Deal, 22 N. W. R., 53; Bowers v. Thomas, id., 710; Bigelow on Fraud, 155. But with respect to a person capable of reading and under

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standing an instrument which he signs, he is bound to know the contents thereof, unless prevented by some fraudulent device, such as the fraudulent substitution of one instrument for another. Hazard v. Griswold, 21 Red. R., 178; Taylor v. Fleckenstein, 30 id., 99.

íhere was no substitution of papers in this case, and no fraud except the misrepresentation of the canvasser. In Seeright v. Fletcher ( 6 Blackf., 381 ), there was a similar misrepresentation as to the contents of the papers, and the court said: “It does not appear that the defendant was deceived by the representations made to him, and if he was, it is manifest that it was the consequence of his own folly. * * * The defendant signed the bond without reading it himself or hearing it read, and with all the means of knowing the truth in his power, reposed a blind confidence in representations not calculated to deceive a man of ordinary' prudence and circumspection. In such a case the law affords no relief.”

In Hawkins v. Hawkins ( 50 Cal., 558 ), substantially the same proposition was held in these words: “If a person enters into a contract with another, between whom and himself no relation of especial trust or confidence exists, and it is reduced to writing by such other person, and a means of the knowledge of the terms of the writing are equally open to both, and he signs it without reading or having it read by some one for him, he cannot avoid a liability created by the writing, even if its terms differ from the contract as agreed upon verbally.” To the same effect see the Maine M. I. Co. v. Hodgkins (66 Me. R., 109), Keller v. Orr, 7 (N. E. R., 195), Fayette Co. S. Bk. v. Steffes (6 N. W. R., 267), McCormack v. Molburg ( 43 Iowa, 561 ), Gulliher v. Chicago etc., Co., (13 N. W. R., 432), Wallace v. Chicago, etc., (25 N. W. R., 772), and McKinney v. Herrick (23 N. W. R., 767).

Where a shipper accepted a bill of lading or receipt from a carrier, the court of appeals in Germania F. I. Co. v. Memphis, etc., R. R. Co. ( 72 N. Y., 90 ), held, that the shipper was bound to examine it, and ascertain its contents, and that he cannot set up ignorance thereof, and resort to the prior parol negotiations to vary them. The fact of not reading rho document cannot be interposed to prevent the legal effect of the transaction (Hill v. Syracuse, etc., R. R. Co., 73 N. Y,, 353 ), and so all through the books will be found decisions holding that the party asking the aid of the law must have made reasonable use of his faculities to prevent loss or injury, for he will not be assisted from the consequences of Bis own folly.

The defendants are intelligent business men, able to read and write, and fully comprehend the meaning, force and effect of the language used in the contract sued upon, which is legally written, without obscure or technical expressions,

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and capable of being read through in a space of time to be measured by seconds. The defendants have had the full benefit of the contract, and they cannot avoid its obligations by proof of their failure to read the paper they signed, or of reliance on what the canvasser told them, when they were as competent as he to read the document and determine for themselves its plain import and meaning. It certainly would not be complimentary to hold that a merchant does not possess sufficient intelligence to protect himself against the arts and wiles of the ordinary book canvasser' without appealing to the courts for it. No such incapacity is imputable to the defendants,

For the reasons stated, there was no defense to the action,, and the motion for the direction of a verdict in favor of ther plaintiffs ought to have been granted. The verdict will,, therefore, be set aside, and a new trial granted, without costs.