only on proof of perfect fairness and candor, the full disclosure of all material facts, and the exercise of an intelligent and unconstrained will.341 Such was the ruling made in a case where a priest induced one of his parishioners to make a deed conveying land for the use of a certain Catholic school. He accomplished this purpose by exhibiting to the grantor a paper writing which the grantor's deceased father had left with his will, in which the father stated that it was his wish that the property in question should go to the said school. But this paper, though signed, was not witnessed. The priest had been advised by attorneys that it was entirely invalid as a will for the want of proper attestation, but he failed to disclose this advice to the grantor. It was held that it was his duty to have given proper information and advice on this point, in view of the relation of the parties, and for that reason the deed was subject to be set aside.342

§ 51. Same; Directors and Stockholders of Corporations. Ordinarily, the relation between a director and a shareholder of a business corporation is not of such a fiduciary character that the director may not purchase the shareholder's stock without disclosing to him the facts within his knowledge which may affect its value.343 But special circumstances in the particular case may clothe the director with such a trust as to make his concealment of material facts a fraud which will justify the setting aside of purchase so made.34 Thus, in a case before the Supreme

341 McClellan v. Grant, 181 N. Y. 581, 74 N. E. 1119; Ross v. Conway, 92 Cal. 632, 28 Pac. 785; Ford v. Hennessy, 70 Mo. 580; Caspari v. First German Church, 12 Mo. App. 293; Corrigan v. Pironi, 48 N. J. Eq. 607, 23 Atl. 355; Huguenin v. Basely, 14 Ves. 273; Norton v. Relly, 2 Eden, 286. Contra, Jackson v. Ashton, 11 Pet. 229, 9 L. Ed. 698.

342 Finegan v. Theisen, 92 Mich. 173, 52 N. W. 619.

343 Bacon v. Soule, 19 Cal. App. 428, 126 Pac. 384; Krumbhaar v. Griffiths, 151 Pa. 223, 25 Atl. 64; Carpenter v. Danforth, 52 Barb. (N. Y.) 581; Boddy v. Henry, 113 Iowa, 462, 85 N. W. 771, 53 L. R. A. 769; Tippecanoe County v. Reynolds, 44 Ind. 509, 15 Am. Rep. 245; Crowell v. Jackson, 53 N. J. Law, 656, 23 Atl. 426.

344 Strong v. Repide, 213 U. S. 419, 29 Sup. Ct. 521, 53 L. Ed. 853; Stewart v. Harris, 69 Kan. 498, 77 Pac. 277, 66 L. R. A. 261, 105 Am. St. Rep. 178, 2 Ann. Cas. 873; Oliver v. Oliver, 118 Ga. 362, 45 S. E.

Court of the United States, it appeared that the action was to set aside a sale of corporate stock. At the time of the sale, the defendant was a director of the corporation, the owner of three-fourths of its stock, and its general manager, invested with large powers, and he was then engaged in negotiations which finally led to the sale of the company's lands to the government at a price which greatly enhanced the value of the stock, so that, at the time of suit brought, it was worth more than eight times as much as at the date of the sale. He employed an agent to buy up the plaintiff's stock, and concealed from the plaintiff both his own identity as the purchaser and his knowledge of the state of the negotiations and their probable successful result. In these circumstances, it was held that he occupied such a fiduciary relation to any and all of the stockholders as required him to disclose all the facts within his knowledge affecting the value of the shares before making any purchase, and that his concealment of such matters was such a fraud as justified the rescission of the sale.345 So, where a director and active manager of a corporation, who owns five-sixths of its stock, alarms a fellow director, the owner of the remaining sixth, by false statements of the financial condition of the company, with intent to induce him to part with his holdings at a grossly inadequate price, and procures from him a contract to sell for such price, payable partly in cash, partly in notes made or indorsed by the manager, and partly in the stock of a corporation organized by him for the purpose of acquiring the assets of the other corporation, and constituting the manager attorney in fact to carry out the transaction, and, in consummating the contract, the manager secretly takes title to the stock himself, such facts show such a case of fraud and deceit as to entitle the seller to relief against the buyer, aside from any question as to the relations between the parties at the time of the transaction. 846

232; Fisher v. Budlong, 10 R. I. 525; Hoffman Steam Coal Co. v. Cumberland, etc., Co., 16 Md. 456, 77 Am. Dec. 311.

345 Strong v. Repide, 213 U. S. 419, 29 Sup. Ct. 521, 53 L. Ed. 853. 346 George v. Ford, 36 App. D. C. 315.

§ 52. Signing Instrument Without Reading It.-A person who signs a written instrument without reading it, when he had ability and opportunity to do so, cannot afterwards complain that he did not know its contents. To state the rule more fully, when a person can read English, and is so far in the possession of his faculties that he can read and understand a written instrument at the time it is presented to him for signature, and is not in any way prevented or dissuaded from doing so, and is not tricked into signing it by any false representation or positive fraud, but nevertheless signs without reading, he is guilty of such negligence that he cannot obtain relief in equity upon afterwards discovering that the instrument is different from what he supposed it to be, or that it imposes obligations which he had not intended to assume, or is more onerous or disadvantageous than he expected it to be.347 This rule,

847 Wagner v. National Life Ins. Co., 90 Fed. 395, 33 C. C. A. 121; Ellicott Machine Co. v. United States, 43 Ct. Cl. 469; Wooddy v. Matthews (Ala.) 69 South. 607; Lester v. Walker, 172 Ala. 104, 55 South. 619; Alosi v. Birmingham Waterworks Co., 1 Ala. App. 630, 55 South. 1029; Walter Pratt & Co. v. Metzger, 78 Ark. 177, 95 S. W. 451; Mitchell Mfg. Co. v. Ike Kempner & Bro., 84 Ark. 349, 105 S. W. 880; Ingram v. Coleman, 110 Ark. 632, 160 S. W. 886; Stone v. Prescott Special School Dist. (Ark.) 178 S. W. 399; Sisk v. Caswell, 14 Cal. App. 377, 112 Pac. 185; Muncy v. Thompson, 26 Cal. App. 634, 147 Pac. 1178; Harrison v. Wilson Lumber Co., 119 Ga. 6, 45 S. E. 730; Georgia Medicine Co. v. Hyman, 117 Ga. 851, 45 S. E. 238; Patapsco Shoe Co. v. Bankston, 10 Ga. App. 675, 74 S. E. 60; Beist v. Site, 16 Ind. App. 4, 44 N. E. 762; Norris v. Scott, 6 Ind. App. 18, 32 N. E. 103, 865; Bonnot Co. v. Newman, 108 Iowa, 158, 78 N. W. 817; Mower Hardwood Creamery & Dairy Supply Co. v. Hill, 135 Iowa, 600, 113 N. W. 466; Blossi v. Chicago & N. W. R. Co., 144 Iowa, 697, 123 N. W. 360, 26 L. R. A. (N. S.) 255; J. I. Case Threshing Machine Co. v Mattingly, 142 Ky. 581, 134 S. W. 1131; McGregor v. Metropolitan Life Ins. Co., 143 Ky. 488, 136 S. W. 889; J. M. Case Mill Mfg. Co. v. Vickers, 147 Ky. 396, 144 S. W. 76; Huber Mfg. Co. v. Piersall, 150 Ky. 307, 150 S. W. 341; United Talking Mach. Co. v. Metcalf, 164 Ky. 258, 175 S. W. 357; Bakhaus v. Caledonian Ins. Co., 112 Md. 676, 77 Atl. 310; Smith v. Humphreys, 104 Md. 285, 65 Atl. 57; McEwan v. Ortman, 34 Mich. 325; Gwin v. Waggoner, 98 Mo. 315, 11 S. W. 227; Paris Mfg. & Importing Co. v. Carle, 116 Mo. App. 581, 92 S. W. 748; International Text Book Co. v. Lewis, 130 Mo. App. 158, 108 S. W. 1118; Ely v. Sutton, 177 Mo. App. 546, 162 S. W. 755; Avery Co. v. Powell, 174 Mo. App. 628, 161 S. W. 335; Spelman v. Delano, 187 Mo. App. 119, 172 S. W. 1163; Sanden v. Northern Pac. Ry. Co.,

however, is subject to numerous exceptions, or rather, there are numerous circumstances which will rebut the presumption of negligence in signing a paper without reading it, or which will excuse the party for his failure to do so, as, for instance, where it is misread to him or its contents misrepresented, where he is prevented from reading it, or where he is illiterate, or temporarily deprived of the use of his eyesight. These various cases will be fully considered in the succeeding sections. At present it is necessary to observe that the general rule does not apply where one's signature to a document is obtained, without his reading it, by means of any actual fraud, trick, or artifice,348 or by representations upon which he has a right to rely, but which are false and fraudulent,849 as, when they are made by one occupy

43 Mont. 209, 115 Pac. 408, 34 L. R. A. (N. S.) 711; Hennessy v. Holmes, 46 Mont. 89, 125 Pac. 132; Howell v. Bloom (Sup.) 117 N. Y. Supp. 893; Leonard v. Southern Power Co., 155 N. C. 10, 70 S. E. 1061; Colonial Jewelry Co. v. Bridges, 43 Okl. 813, 144 Pac. 577; Powers v. Powers, 46 Or. 479, 80 Pac. 1058; Foster v. University Lumber & Shingle Co., 65 Or. 46, 131 Pac. 736; Cosgrove v. Woodward, 49 Pa. Super. Ct. 228; Sloan v. Courtenay, 54 S. C. 314, 32 S. E. 431; Reed v. Coughran, 21 S. D. 257, 111 N. W. 559; Gulf, C. & S. F. Ry. Co. v. Fenn, 33 Tex. Civ. App. 352, 76 S. W. 597; Kansas City Packing Box Co. v. Spies (Tex. Civ. App.) 109 S. W. 432; Lewis v. Whitworth (Tex. Civ. App.) 54 S. W. 1077; Parrott v. Peacock Military College (Tex. Civ. App.) 180 S. W. 132; Larsen v. Oregon Short Line R. Co., 38 Utah, 130, 110 Pac. 983; Fulton v. Messenger, 61 W. Va. 477, 56 S. E. 830; Hale v. Hale, 62 W. Va. 609, 59 S. E. 1056, 14 L. R. A. (N. S.) 221; R. D. Johnson Milling Co. v. Read (W. Va.) 85 S. E. 726; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 67 L. R. A. 705; Ross v. Northrup, King & Co., 156 Wis. 327, 144 N. W. 1124. The rule that both parties in making a contract must assent to the same thing in the same sense has no reference to the misconception of a party to the contract wholly unauthorized by the language of the contract. Teachout v. Clough, 143 Mo. App. 474, 127 S. W. 672.

848 Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N. W. 392, 92 N. W. 246, 67 L. R. A. 705; Providence Jewelry Co. v. Crowe, 113 Minn. 209, 129 N. W. 224; Goetz v. Sona, 65 Ill. App. 78; Birmingham Ry. Light & Power Co. v. Jordan, 170 Ala. 530, 54 South. 280; Muller v. Rosenblath, 157 App. Div. 513, 142 N. Y. Supp. 602.

349 Givan v. Masterson, 152 Ind. 127, 51 N. E. 237; Disney v. St. Louis Jewelry Co., 76 Kan. 145, 90 Pac. 782; St. Louis Jewelry Co. v. Bennett, 75 Kan. 743, 90 Pac. 246; Loyd v. Phillips, 123 Wis. 627, 101 N. W. 1092; J. Weil & Co. v. Quidnick Mfg. Co., 33 R. I. 58, 80 Atl. 447; Compagnie Des Metaux Unital v. Victoria Mfg. Co. (Tex. Civ. App.) 107 S. W. 651.

It

ing a fiduciary or confidential relation to him.350 Thus, a business man had been accustomed for several years to sign deeds prepared by his son conveying small town lots, without reading them, on the representation of the son in each case. On one occasion the son presented to him a deed for his signature, stating, as usual, that it conveyed one of the town lots, and the father signed without reading it. But in reality it conveyed all the father's interest in his deceased wife's real estate for a nominal consideration. was held that the deed might be set aside as fraudulent.951 So, a traveling salesman who procures an order for goods and undertakes to write out the order must write it according to the agreement, and if the written order does not embody the agreement, the buyer, signing it through inadvertence or negligence without reading it, may nevertheless avoid it on the ground of fraud.352 So again, where two persons were induced to sign their names to a printed form of contract for the purchase of a book, by a fraudulent representation made to one that he was writing his name only to show how it was spelled, and to the other that he was signing his name only as an autograph, it was held that neither was bound, though they were negligent in failing to ascertain what was printed on the papers they signed.353 But where a defendant knows that he is signing at contract which imports an obligation, and has an opportunity to read it, but chooses to sign without reading, he is bound by its terms, although the plaintiff may have stated its contents imperfectly, if there has been no concealment

350 Haag v. Burns, 22 S. D. 51, 115 N. W. 104.

351 Hale v. Hale, 62 W. Va. 609, 59 S. E. 1056, 14 L. R. A. (N. S.) 221.

352 J. Weil & Co. v. Quidnick Mfg. Co., 33 R. I. 58, 80 Atl. 447. And see Granger v. Kishi (Tex. Civ. App.) 153 S. W. 1161.

353 Alexander v. Brogley, 63 N. J. Law, 307, 43 Atl. SSS. But see Williams v. Leisen, 72 N. J. Law, 410, 60 Atl. 1096. In this case, to avoid liability on a written contract for the purchase of books, defendant testified that plaintiff's agent told him that he wanted to get some influential citizens to indorse the work; that he did not read the contract, but signed his name only to indorse the work to other citizens, and that the agent did not tell him that he was signing a contract to buy the books. But this was held insufficient to exonerate the defendant from the contract.