There are cases in which a contract is void because of a mistake as to the nature of the transaction. Such cases arise in the execution of written instruments, and must arise almost of necessity from misrepresentation, either of a third person or of the other party. A man who has executed an instrument cannot avoid its operation by saying that he did not put his mind to it or that he did not suppose it would have any legal effect.7 He must have been induced to execute it by some deceit or misrepresentation which ordinary diligence could not penetrate. Thus, where a man who is illiterate, or blind, or ignorant of the language, executes a deed, which is misread or misdescribed to him by the other party or a stranger, and the deed is in fact a different instrument from that which he was led to believe it to be, the deed is void.8 But if a man can read and does not read the document which he signs,9 or if, being unable to read, he signs without having it read,10 he will not be heard to say that the contract is void, although in such case, if he was induced to sign it by fraudulent misrepresentation as to the character or terms, it is generally held that the contract is voidable.11
Am. St. Rep. 224; Brown v. Levy, 29 Tex. Civ. App. 389, 69 S. W. 255. See "Contracts," Dec. Dig. (Key-No). § 98; Cent. Dig. §§ 415-419.
4 See post, p. 270.
5 C. H. Young Co. v. Springer, 113 Minn. 382, 129 N. W. 773. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
6 Darnell v. Dolan (Tex. Civ. App.) 132 S. W. 857; Stewart v. Ticonic Nat. Bank, 104 Me. 578, 72 Atl. 741. See "Contracts," Dec Dig. (Key-No.) § 98; Cent. Dig. §§ 415-419.
7 Hunter v. Walters, L. R. 7 Ch. 81; Cannon v. Lindsey, 85 Ala. 198, 3 South. 676, 7 Am. St Rep. 38. And see Kennerty v. Etiwan Phosphate Co., 21 S. C. 226, 53 Am. Rep. 669; Little v. Little, 2 N. D. 175, 49 N. W. 736; Quimby v. Shearer, 56 Minn. 534, 58 N. W. 155; Campbell v. Van Houten, 44 Mo. App. 231; Liska v. Lodge, 112 Mich. 635, 71 N. W. 171; Royston v. Miller (C. C.) 76 Fed. 50; Chicago, St. P., M. & O. Ry. Co. v. Belliwith, 83 Fed. 437, 28 C.C.A. 358; Muller v. Kelly (C C) 116 Fed. 545; Sheneberger v. Union Cent. Life Ins. Co., 114 Iowa, 578, 87 N. W. 493, 55 L. R. A. 269; Martin v. Smith, 116 Ala. 639, 22 South. 917; Bostwick v. Mutual Life Ins. Co., . 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 67 L. R. A. 705; Fivey v. Pennsylvania R. Co., 67 N. J. Law, 627, 52 Atl. 472, 91 Am. St. Rep. 445. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
In a leading case, the acceptor of a bill of exchange had induced a person to indorse it by telling him that it was a guaranty, and the defendant signed on the faith of the representation without seeing the face of the bill. It was held that, if the defendant was not guilty of any negligence in so signing, the bill did not bind him, even in the hands of a bona fide purchaser for value. It seems "plain, on principal and on authority," said the court, "that if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs, then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid, not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore, in contemplation of law, never did sign, the contract to which his name is appended." 12
8 Thoroughgood's Case, 2 Coke, 9; McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848; Schuylkill Co. v. Copley, 67 Pa. 386, 5 Am. Rep. 441; Rockford, R. I. & St. L. R. Co. v. Shunick, 65 I11. 223; Burlington Lumber Co. v. Lumber Co., 100 Iowa, 469, 69 N. W. 558; Sibley v. Holcomb, 104 Ky. 670, 47 S. W. 765. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
9 Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203; In re Greenfield's Estate, 14 Pa. 489; J. I. Case Threshing Machiue Co. v. Mattingly, 142 Ky. 581, 134 S. W. 1131. And see cases cited supra, note 7. See "Contracts," Dec. Dig. (Key-No.) § 98; Cent. Dig. §§ 415-419.
10 Chicago, St. P., M. & O. Ry. Co. v. Belliwith, 83 Fed. 437, 28 C. O. A. 358; Muller v. Kelly (C. C.) 116 Fed. 545. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
11 Maxfield v. Schwartz, 45 Minn. 150, 47 N. W. 448, 10 L. R. A. 606; Standard Mfg. Co. v. Slot, 121 Wis. 14, 98 N. W. 923, 105 Am. St. Rep. 1016; Griffin v. Roanoke Railroad & Lumber Co., 140 N. C. 514, 53 S. E. 307, 6 L. R. A. (N. S.) 463; Western Mfg. Co. v. Cotton & Long, 120 Ky. 749, 104 S. W. 758, 12 L. R. A. (N. S.) 427. And see post, p. 284. See "Contracts," Deo. Dig. (Key-No.) § 98; Cent. Dig. § 447
In this case the contract was void, and therefore could not be enforced even by a bona fide holder. And the case would have been the same had the execution been obtained, without negligence on the part of the signer, by the fraud of the other party.13 In that case also the minds of the parties never meet, for the defrauded party thinks he is signing one instrument, and the defrauding party is aware that the signer is signing a different instrument. The case is, in effect, one of mistake, induced by fraud. If the ground of avoidance is the fraud of the other party, whereby the signer was induced to execute the instrument understandingly the misrepresentation not relating to the character of the instrument, the contract, as we shall see, would be voidable, and not void.1*
The absence of negligence is strongly dwelt upon by the court in the case above stated, and the jury had expressly negatived its existence. A person cannot assert the invalidity of a note or bill of exchange or deed, as against a bona fide purchaser for value, on the ground that through fraud and circumvention he was induced to sign, not knowing the nature of the instrument, unless he shows that he was not guilty of negligence; for if he was negligent he will be estopped from asserting the invalidity. If he shows this, but not otherwise, he may assert the invalidity of the instrument, even as against a bona fide purchaser.15 There are some cases which hold that a negotiable instrument cannot be avoided in the hands of a bona fide holder, even though there was no negligence;16 but the great weight of authority is in favor Of the rule above stated.
12 FOSTER v. MACKINNON, L. R. 4 C. P. 704, 38 L. J. C. P. N. S. 810,
20 L. T. N. S. 887, 17 Wkly. Rep. 1105. Throckmorton, Cas. Contracts, 166. And see Gibbs v. Linabury, 22 Mich. 479, 7 Am. Rep. 675; Kagei v. Totten, 59 Md. 447; Whitney v. Snyder, 2 Lans. (N. Y.) 477; Cline v. Guthrie, 42 Ind. 227, 13 Am. Rep. 357; Walker v. Ebert, 29 Wis. 194, 9 Am. Rep. 548; Puffer v. Smith, 57 I11. 527; Soper v. Peck, 51 Mich. 563. 17 N. W. 57; De Camp v. Hamma, 29 Ohio St. 467; Trambly v. Ricard, 130 Mass. 259; Corby v. Weddle, 57 Mo. 452; Detwiler v. Bish, 44 Ind. 70; Baldwin v. Bricker, 86 Ind. 221; Hewitt v. Jones, 72 I11. 218; Bowers v. Thomas, 62 Wis. 480, 22 N. W. 710; Schaper v.'schaper, 84 I11. 603; Vanbrunt v. Sing-ley, So I11. 281; Esterly v. Eppelsheimer, 73 Iowa, 260, 34 N. W. 846; Wood v. Lock Co., 96 Ga. 120, 22 S. E. 909. See "Bills and Notes," Dec Dig. (Key-No.) § 103; Cent. Dig. §§ 283-240.
13 McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848; Esterly v. Eppelsheimer, 73 Iowa. 260, 34 N. W. 846; Green v. Wilkie, 98 Iowa, 74, 66 N. W. 1046, 36 L. R. A. 434, 60 Am. St. Rep. 184; Lindley v. Hofman, 22 Ind. App. 237, 53 N. E. 471; Yakima Valley Bank v. McAllister, 37 Wash. 566, 79 Pac. 1119, 1 L. R. A. (N. S.) 1075, 107 Am. St. Rep. 823 (signature-obtained by trick). And see cases cited in note 12, supra, and note 15, infra. See "Bills and Notes," Dec. Dig. (Key-No.) § 373; Cent. Dig. §§ 966-970.
14 Post. p. 295.