In Southern Auto Co. v. Fletcher, 66 Ga. App. 168 (17 S.E.2d 294), it was held that no cause of action would arise for fraudulently representing a Plymouth automobile to be a 1937 model, where the written contract of sale showed it to be a 1936 model, no fraud being alleged such as to prevent the plaintiff from reading the contract.Summary of this case from Mosely v. Johnson
DECIDED SEPTEMBER 22, 1941. REHEARING DENIED NOVEMBER 19, 1941.
Trover; from Tift superior court — Judge Eve. March 7, 1941.
John T. Ferguson, for plaintiff in error.
Robert R. Forrester, contra.
Where one who can sign her name purchases an automobile under a written contract which describes it as a 1936 model, she can not rescind the contract on the ground that it was orally represented to be a 1937 model, when the seller had no reason to know that she could not read, made no representations as to the nature or contents of the contract, and there was no emergency in connection with the execution of the instrument.
DECIDED SEPTEMBER 22, 1941. REHEARING DENIED NOVEMBER 19, 1941.
Vallie Fletcher brought an action of trover against the Southern Auto Company for the recovery of a certain automobile. The defendant filed an answer denying all of the allegations of the petition. On the trial the jury found a verdict for the plaintiff, and the exception here is to the order overruling the motion for new trial.
The plaintiff testified in substance that Mr. Wood, of the Southern Auto Company, began negotiations with her for the sale of a Packard automobile which he represented to be a 1937 model, and that after considerable negotiation she agreed to trade him her 1937 model Plymouth automobile for the Packard; that, pasted on the windshield of the Packard, was a paper containing the words: "number 677-A, 1937 Packard Fordor 120, motor No. x36935;" that she thought she was buying a 1937 model car, and that Mr. Wood told her it was a 1937 car; that she could sign her name but could not read or write anything but her name; that later on she went to Mr. Wood and complained that the car she bought was using too much oil and wanted her Plymouth back, but that they finally compromised by reducing the original note from $371.10 and executing a second note for $275, and the old contract was canceled; that when she signed the second note the Packard was said to be a 1937 model; that she then asked Mr. Wood to order a tag for the car and he requested a stenographer in the building who worked for the defendant to fill out the application, and gave her the information and told her to put in the application that it was a 1937 Packard; that later on she talked to a Mr. Lassiter and he told her that she had a 1936 Packard and not a 1937 Packard; that she then went back to defendant, tendered the Packard, and demanded the return of her Plymouth, which was refused. On cross-examination the witness testified that she could not spell "cat;" that she had gone to school through the second grade; that she could read figures and numbers and count to 100. The witness, at the request of counsel for the defendant then wrote 1937, 1936, model, and year, but testified that she did not know the meaning of any of them.
A. L. Lassiter testified in substance that he was a Packard dealer and that he was familiar with the Packard car in question; that Mr. Wood came into a filling station and asked him how he liked the 1937 Packard he had just bought (the car in this case), and witness told him that it was a 1936 Packard; that later Mr. Wood came back and told witness that he had traded for better than $300 and a 1937 Plymouth for the Packard; that the plaintiff came to him and asked him the model of the car, and that though she was complaining of the gas consumption, her main complaint was the model year.
O. L. Wood testified substantially that he handled the trade with the plaintiff; that he represented the Packard to be a 1936 model all through both transactions; that he first traded her the 1936 Packard for her 1937 Plymouth and a note for $371.10; that she came back in a few days and complained that the car was using too much oil; that after some negotiation the original contract was destroyed and a new one executed calling for a difference to be paid by her of $275; that plaintiff expressed herself as being fully satisfied; that witness told her that it was a 1936 Packard and she said she understood; that the plaintiff can write her name as well or better than the witness, and he did not know she could not read or write; that up until the filing of this suit he thought the plaintiff could read and write and still thinks so; that he got a girl in the office to make out the application for the tag but did not tell her it was a 1937 Packard; that if this information was given it was given by the plaintiff; that the paper on the windshield of the car was not put there by his concern.
J. M. Smith, the manager of the defendant company, testified that the paper from the windshield was not put there by his concern as they did not advertise in that way.
Two witnesses swore that the plaintiff could not read or write, and that she had not gone past the second grade in school. Among the documentary evidence introduced were two bills of sale mentioned by the witnesses, being identical in all respects except in the amount due, and each containing among other things the following: "Packard Sedan, Mtr. No. x36935, 1936 Model. . . I have examined said chattel, and accept the same in its present condition, and there shall be no warranty, either express or implied, as against the seller or his assigns." The paper from the windshield of the car was introduced, as was the application for a tag, both showing a 1937 model.
In 12 Am. Jur. 630, § 137, it is stated: "The rule that one who signs a contract is presumed to know its contents has been applied even to contracts of illiterate persons on the ground that if such persons are unable to read, they are negligent if they fail to have the contract read to them. If a person can not read the instrument, it is as much his duty to procure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents." The following cases are cited in support of the statement: United States v. Fletcher, 279 Fed. 160; Bates v. Harte, 124 Ala. 427 ( 26 So. 898, 82 Am. St. R. 186; Sharpless-Hendler Ice Cream Co. v. Davis, 17 Del. Ch. 321 155 A. 247; Shulman v. Moser, 284 Ill. 134 ( 119 N.E. 936); Velcich v. Malesh, 284 Ill. App. 63 ( 1 N.E.2d, 278); Williams v. Hamilton, 104 Iowa, 423 ( 73 N.W. 1029, 65 Am. St. R. 475); Price v. Shay, 110 Kan. 351 ( 203 P. 1105); Kentucky Road Oiling Co. v. Sharp, 257 Ky. 378 ( 78 S.W.2d 38); Spitze v. B. . O. R. Co., 75 Md. 162 ( 23 A. 307, 32 Am. St. R. 278); Sponseller v. Kimball, 246 Mich. 255 ( 224 N.W. 359); North v. Williams, 120 Pa. 109 ( 13 A. 723, 6 Am. St. R. 695). See 138 Am. St. R. 813; Ann. Cas. 1913A, 433; 17 C. J. S. 494, § 139, to the same effect. It is not necessary in this case to apply the above rule to the fullest extent, for the reason that there was no evidence whatever that the agent of the seller knew that the buyer could not read and understand what she read. Under the circumstances of this case the seller can not be said to have been guilty of fraud when it had no reason to suspect the buyer's illiteracy, and did not misrepresent the nature or the contents of the instrument with that definite knowledge. Neither was there any emergency of any kind shown which would affect the case. It is insisted by the defendant in error that Grimsley v. Singletary, 133 Ga. 56 ( 65 S.E. 92, 134 Am. St. R. 196), is controlling. The contention is not well founded because in that case there was a misrepresentation of the nature and contents of the instrument signed. There is no such fact in this case. The court erred in overruling the motion for new trial.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.